Hutchins v. Dixon

Tuck, J., delivered the opinion of this court. The deed from Hooper to Bowen of the 10th of February 1837, shows a plain intent to restore to his wife the property she owned at the time of the marriage, “so that the same might be for her exclusive use and benefit, as though she were a ferns sole;” and this design is further indicated by the provision, that in the event mentioned in the deed it should pass to “her legal heirs and representatives in the same manner as if they had never been married.” Words better adapted to the purpose of divesting himself of the title could not have been employed; subject, however, to the conditions that the property should be answerable for her debts, and that she should not set up any claim to his estate if she survived her husband. “Technical words are not necessary to create a separate use, but adequate language must be employed in making a gift of this kind to manifest a decided intention to transfer a separate interest, to show that the husband was not to enjoy what the law would otherwise give him.” And the effect may be produced “without the interposing office of a trustee.” Carroll vs. Lee, 3 G. & J., 504 . This deed, however, did not make any provision for the event of her dying first, without disposing of the property as authorized by its terms; and if tire deed from Bowen to Mrs. Hooper, of the same date with the other, had not been executed, and Mrs. Hooper had died without exercising that power in any other manner, the title to the personal property would have been restored to James Hooper. This is very clear according to the adjudged cases.

Stewart vs. Stewart, 7 John. Ch. Rep., 229. Pickett vs. Chilton, 5 Munf., 467 .

Ward vs. Thompson, 6 G. & J., 349 . Waters vs. Tazewell, 9 Md. Rep., 291 . ³⁸ But the wife having, as alleged by the appellants, made an appointment by "requiring the trustee to execute the second deed, the appeal must be determined by the construction and effect of that instrument, because as James Hooper gave authority to dispose of the property, her acts in that regal'd must bind those claiming under him. In the case of Marshall vs. Beall, 6 Howard, 70 , the court decided in favor of the wife’s title, because it appeared by the deeds under consideration, “that the intention of the parties was, to carry the title of the fund beyond the period of the wife’s death, and to exclude the husband.” And this principle was recognized as a test in the cases of Waters vs. Tazewell, 9 Md. Rep., 291 ; and Townshend vs. Matthews, 10 Md. Rep., 251. It is true, that in those cases, and in Ward vs. Thompson, 6 G. & J., 349 , the use or separate estate was created for the wife, her executors, administrators and assigns, free from the control of the husband, whereas in the deed from James Hooper it is not so conveyed.

But as we are dealing with the intention of the parties, and this is to be gathered from the whole language employed, and not by resorting merely to technical terms, we are not to narrow the construction on account of the absence of words of limitation, but must give such effect to others, if they manifest a design to extend the title beyond the wife’s death. And this we think appears, not only from the words already quoted from the recital in the deed, but also from the trustee’s power to dispose of the property in any manner she might direct during the coverture, the power to make a testamentary disposition; and if she survived the husband the limitation to her heirs and representatives, in the same manner as if the parties had never been married. The wife, in neither of the cases referred to, could have exercised much greater power over the property than was conferred upon Mrs. Hooper by the deed of her husband. If, therefore, the second deed passed the title beyond the period of Mrs. Hooper’s death, the effect must be to exclude the marital rights.

By this conveyance Mrs; Hooper took the property “for her sole use and benefit during her natural life, and after her death, (in cáse she should not dispose of the same by last will and ³⁹ testament,) to her heirs and legal representatives,” subject to the conditions mentioned in the first deed. We think this instrument also shows an intention on the part of the wife, who alone had the power to direct the disposal of the property, that her title should extend beyond her death, to the exclusion of the husband. She might have so directed by her will, which, we need scarcely remark, could not have operated before that period, and in default of a will the ultimate enjoyment of the properly was provided for in such a manner, that the husband could not have participated therein under either of the designations employed. If