Waters v. Tazewell

Eccleston, J., deiivéred the opinion of this court. The bill in this case speaks of several parcels of property, the controversy in regard to which has been settled by agreement between the parties. And the only property now in dispute is mentioned in the two deeds to Denison, in trust, one from Baker and McDonald, dated the 22nd of April 1839, and the other from Powell, dated the 13th of August 1841. The bill was filed by the appellants against the appellees.

On the 23rd of February 1855, by consent, a decree was passed, which disposed of sundry matters set forth in the bill as grounds of claim. On the 28th of May 1855, a pro forma order was passed, dissolving an injunction which had been issued for the purpose of enjoining Tazewell from conveying, assigning, or in any manner alienating the property now in controversy. From which order this appeal has been taken, for the purpose of obtaining the decision of this court as to the rights of the respective parties, in relation to the property mentioned in the two deeds which have been referred to. ²⁹⁸ Charlotte A. Crow, a widow, being possessed of certain real and personal property, on the 11th of July 1837, conveyed the same to Marcus Denison, his heirs, executors, administrators and assigns, to the use of the said Marcus Denison, his heirs, executors, administrators and assigns, forever, in trust and confidence for such uses, intents and purposes, as most undoubtedly gave to the said Charlotte, at all events, whilst a feme sole, full power and authority to sell, dispose of and convey the said property, or any part thereof, and the rents, issues, income and profits of the same, as she might deem proper. Out of the issues and profits of the property included in the deed last mentioned, Charlotte A. Crow purchased, on the 22nd of April 1839, the leasehold lot of ground on Pitt street in Baltimore, which is described in the deed from Baker and McDonald, and which, by the directions of Charlotte, was conveyed by that deed to M. Denison, his executors, administrators and assigns, “intrust for the sole and separate use, benefit and behoof of the above named Charlotte A. Crow, her executors, administrators and assigns, so that she be suffered and permitted either to receive and take the clear rents, issues and income, or proceeds in case of sale, as aforesaid, to apply to such uses and purposes as she should think proper, in the same manner as if she were a feme sole, so that neither the said trust estate and property, nor the rents, issues, income or proceeds thereof should at any time be subject to the power, disposal or control of the present or any future husband of the said Charlotte A. Crow, or be in any manner liable or bound for or by his debts, contracts or engagements.

And from and immediately after the decease of the said Charlotte A. Crow, in case no sale or disposition shall have been made by her of said ground and premises by deed or contract, then in trust for such person or persons, or for such uses and purposes as she by her last will and testament, executed in the presence of and attested by three credible witnesses, should name, limit or appoint; and in default of such nomination, limitation and appointment, then for the use and benefit of such person, or persons as would, by the now (then) existing laws of the ²⁹⁹ State of Maryland, take an estate in fee-simple by descent from her, and to, for and upon no other use, trust, intent or purpose whatsoever.” In contemplation of an intended marriage between Mrs. Crow and Tazewell, (the appellee,) he executed a marriage covenant on the 1st of March 1841, which, after referring to the intended marriage, recited, that although the estate, real and personal, of the said Charlotte Á. Crow had been conveyed to trustees for her sole use and benefit, still it seemed agreeable and proper that the covenants thereinafter expressed should be made, “ in order to satisfy all parties, and to secure the property to which the said Charlotte A. Crow is in any way entitled, from the control or interference of the said Samuel Oliver Tazewell.” And in consideration of the premises, and for other considerations, the said Tazewell covenanted, granted, promised and agreed, that Mrs. Crow should and might, “ at all times thereafter, have, hold, occupy, enjoy, use and dispose of, peaceably and quietly, in such manner as she might think fit, all rents and profits, use, service and income, arising, or to arise, out of land, negroes, bank stock, or any other property, real, personal or mixed,” to which she was then in any manner entitled, ‘ 1 free from the let, suit, hindrance, trouble, denial, expulsion, interruption or interference of the said Samuel Oliver Tazewell, without being interrupted in the enjoyment thereof by any act, means, consent, privity, default or procurement of his, and freed from any right, title or interest therein, which he, the said Oliver Tazewell, might otherwise have therein by virtue of the said marriage then about to be solemnized; and further, that no part of the said estate of the said Charlotte Augusta should thereafter become liable for any debt or obligation of the said Samuel Oliver Tazewell, whether the same be debts contracted before or after die marriage; and particularly, and lastly, that he, the said Samuel Oliver Tazewell, would never interfere in any way in selling, or otherwise disposing of, any slave or slaves of the said Charlotte Augusta Crow, without her express desire, and without her free and entire consent.” Shortly after the execution of the marriage covenant the ³⁰⁰ marriage took place; and subsequently thereto, on the 13th of August 1841, Charlotte purchased a leasehold lot of ground from Samuel A. Powell, for $1200, with funds belonging to her for her sole and separate use; which property, by her directions, and with the knowledge and assent of her husband, was conveyed to Denison, his executors, administrators and assigns, “in trust that he, the said Denison, permit and suffer the said Charlotte Augusta Tazewell, and her assigns, to have and receive the rents, issues and profits of the said premises, free from all control whatever from her said husband, or any future husband, for and during so many of the term of ninety-nine years then to come and unexpired, as she should happen to live;” and if she should wish and consent to assign the premises, “then in trust that he, the said Marcus Denison, his executors, administrators or assigns, should assign and transfer the said premises,” in such manner as she might direct or authorise; and if the said premises should not be sold during the lifetime of the said Charlotte, then, after her death, the said leasehold property should “ be in such person or persons, and upon such conditions, manner and form as the said Charlotte A. Tazewell should, whether covert or discovert, by any writing purporting to be her last will and testament, duly executed and testified in the presence of two credible witnesses, give, limit, dispose, direct and appoint;” and in default of any such gift, limitation, disposition, direction or appointment, “then in trust that the said Marcus Denison, his executors, administrators or assigns, in case Oliver Tazewell, the husband, should survive his wife, should pay, or else permit the said Oliver Tazewell and his assigns to receive, the ’ rents, issues and profits of the said leasehold premises during Lis natural life only, to and for his own use apd benefit, provided the said Oliver Tazewell should continue unmarried after the death of his wife then living, and from and immediately after his decease, then to go, and be transferred and assigned to such person or persons as should be the legal heirs of the said Charlotte A. Tazewell, for and during so many years of the said term of ninety-nine years as should be then unexpired.” ³⁰¹ In April 1853, Mrs. Tazewell died, having made no will, leaving no child or descendant of a child, and without having 'disposed of, or made any appointment in regard to, any of the property mentioned in the deed from Baker and McDonald,, or in that from Powell. She was the sister of the complainants, who, at the time of her death, were, and still are, her only heirs at law and next of kin. Tazewell, the surviving husband, married again in April 1854.

The appellants contend, that the proforma order dissolving the injunction should be reversed. They claim, that as next of kin to Charlotte A. Tazewell, upon the true construction of the deed from Baker and McDonald, the marriage covenant and the deed from Powell, they are entitled to the leasehold property mentioned in those two deeds; insisting, that whatever estate in the property included in the Powell deed Samuel O. Tazewell had, at any time, was terminated by his second marriage. It will be seen that this controversy is in reference to personal property, and is, therefore, subject to the common law doctrine in regard to uses, as uses in personalty are not executed under the statute of 27th Hen. 8, ch. 10. We make this remark to avoid misapprehensions which might arise from decisions made under the statute.

As the decision we are about to make has been very much influenced by that of the Supreme Court of the United States, in Marshall vs. Beall, 6 How., 70 , it will be proper to state the circumstances of that case. The matter there in dispute was a judgment for f1500, the question being, whether the surviving husband or the next of kin of the deceased wife were entitled to the money? In contemplation of a marriage between Robert Marshall and Ann Berry, they entered into a written agreement, that Ann should “hold in herself all her right, title and interest” to certain “funds of her own.” After the marriage, on the 1st of May 1824, the husband and wife executed a deed of trust to S. G. Beall, referring to the former agreement, and reciting, that when made the said Robert agreed to make any ³⁰² other or further instrument of conveyance, which might be considered necessary fully to assure and convey the stock and debts to the sole and separate use of the said Ann, her heirs and assigns, free and clear from any debts, control, demands or incumbrances of the said Robert; and also reciting, that the husband and wife had agreed to dispose of and settle two judgments, (one for $2000, and the other for $1500,) and a tract of land, “by a more full, complete and formal instrument of writing than the marriage agreement,” before mentioned, “according to the terms, stipulations and conditions” of the instrument then being executed. By which deed the parcel of land and the two judgments were conveyed and assigned to S. G. Beall, her heirs, executors, administrators and assigns; the land to be held in trust for the use of the husband and wife during their joint lives, and to the use of the husband for his life, if he should be the survivor; — the further trust being, that the husband should have and receive the judgment for $2000, with interest and costs, “to his sole and separate use, free and clear of the marriage contract before mentioned, and of all separate claim of the said Ann Marshall;” “and in further trust that the said Susan G. Beall should hold the said judgment of fifteen hundred dollars, with interest and costs, for the sole and separate use of the said Ann Marshall, her executors, administrators and assigns, free and clear from any control or demand of the said Robert Marshall, or of his creditors, debts or engagements; and upon the payment of the said judgment, or any part thereof, to invest the said money in stock, or to loan the same on interest, with the approbation of the said Ann Marshall, for the like sole and separate use of the said Ann Marshall; and in further trust, that the said Ann Marshall, during the life of her husband, may dispose of said judgment or the proceeds thereof, and of her right, interest and estate in the said tract of land, after the death of the said Robert Marshall, either by her last will and testament, or by any instrument of writing, under her hand and .seal, in the presence of two witnesses, during her coverture, in the same manner as if she were single.” The wife died without malting any disposition of this judg ³⁰³ meat, and the surviving husband claimed it, but he was defeated.

In delivering the opinion of the court, Mr. Justice Catron says: “The question presented for our decision is, whether the husband only made a temporary surrender of his marital rights during the coverture, or whether he abandoned them altogether? This depends on the intention of the parties, as expressed in the marriage articles.” By “marriage articles,” it is evident he alludes to the two instruments we have spoken of. He speaks of the first agreement as being vague, rendering it doubtful whether the marital rights of the husband would not attach, although the court did not doubt the wife desired, and really intended, to retain her property as if she was a feme sole, notwithstanding the marriage. Reference is then made to what is called “the article of 1834.” This is erroneous in point of date.

The instrument alluded to is, manifestly, the trust deed dated the 1st of May 1824. In relation to this the court say: “ We think that the terms of the agreement of 1834 sufficiently show, 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 in this conclusion we are supported by the opinion of the Court of Appeals of Maryland, in the case of Ward vs. Thompson, 6 Gill & Johns., 349, and in tire soundness of which opinion we fully concur.” In Ward, et ux., vs. Thompson, 6 G. & J., 349 , the ante-nuptial settlement between Robert Thompson and Ann W. Menger, provided, that the real and personal