Opinion
03-04-1852
CHARLES v. CHARLES.
Morson, for the appellant. Meredith, for the appellee.
(Absent Cabell, P.)
1. The rights of a husband to the property of his intended wife, may be intercepted by his agreement to that effect. And where by express contract before and in contemplation of marriage, for which the marriage is a sufficient consideration, he agrees to surrender his right to the enjoyment of the property during the coverture, and his right to take as survivor, there remains nothing to which his marital rights can attach during the coverture, or after the death of the wife. In such case the wife is to all intents to be regarded as a feme sole in respect to such property; and there is no necessity that the marriage contract or settlement should limit the property to her next of kin upon her failure to appoint; but it will pass as if the wife died sole and intestate.
2. If the husband has relinquished his marital rights to his wife's property, he is not entitled to administration upon her estate.
A marriage being about to take place between Henry H. Charles of the county of York, and Martha P. Wynne, widow of Richard Wynne deceased, a deed bearing date the 8th day of October 1835, was executed by the parties for the settlement of her property. This deed recited that it had been agreed between the parties that Mrs. Wynne should, after the marriage, receive and enjoy, during the joint lives of the said Wynne and Charles, the interest and occupation of her personal estate; and also that the same, and the interest and profit thereof, from and after the decease of such of them as should first happen to die, should be at the sole and only disposal of the said M. P. Wynne, notwithstanding her coverture. And that it had been also agreed, that in case the said Charles should, after the marriage, happen to survive the said M. P. Wynne, that he should not claim any part of the real or personal estate whereof the said M. P. Wynne should be seised or possessed or entitled to, at any time during the coverture; and that the said real and personal estate of the said M. P. Wynne should be in nowise under the control of said Charles, nor in any manner or at any time subject to his debts.
The deed then proceeds to convey in the name of M. P. Wynne to James Kirby sr., with the consent and approbation of Charles, which is witnessed by his sealing the deed, all her property both real and personal, in trust for Mrs. Wynne until the marriage, then upon trust that Kirby will permit her to enjoy the sole, separate and exclusive use of the said property for her own separate and special use; and upon the further trust that the trustee will permit the said M. P. Wynne to dispose of the said property by deed, will or otherwise, as she shall think proper; and that he will convey a legal title to the person or persons to whom she may convey the property. This deed was executed by Charles, Mrs. Wynne and the trustee, and duly admitted to record: And the marriage took place.
In December 1849 Mrs. Charles died, leaving her husband surviving her, without having disposed of her estate either by deed or will, or otherwise. She left no child surviving her or descendant of a child, though she had had children by her two former marriages; but they had died before her marriage with Henry H. Charles. Her distributees, if her husband was not entitled to her personal estate, were her nieces, descendants of sisters, of whom one was married to William H. Charles.
The slaves belonging to Mrs. M. P. Charles at the time of her marriage, never went into the possession of the trustee, but always remained in the possession and enjoyment of Henry H. Charles, during the coverture.
At the April term 1850 of the Circuit court of York county, Henry H. Charles moved the Court to be permitted to qualify as the administrator of his late wife, Martha P. Charles; which motion was opposed by William H. Charles, who asked for the administration for himself, on the ground of his marriage with one of the nieces of Martha P. Charles, entitled, as he insisted, to a portion of the estate. These motions came on to be heard together in April 1851, when the Court overruled the motion of Henry H. Charles, and granted the administration to William H. Charles. And thereupon an exception was taken to the opinion of the Court, and Henry H. Charles applied to this Court for a supersedeas, which was awarded.
Morson, for the appellant.
It is submitted that the decision of the Circuit court was erroneous and prejudicial to Henry H. Charles, and ought to be set aside and reversed. He must by operation of law be entitled to the property, unless the deed has intercepted the rule of law, and by substituting a rule of its own and a rule intended to apply to the emergency which has occurred, has clearly not only taken the property from him, but given it to others. For where, upon a given state of facts, the rule of law turns property over to one man, it cannot be turned over to another by any compact, agreement or declaration of any party or parties which stops short of clearly giving, and manifesting an intention to give it to such other. Heirs cannot be disinherited by the strongest declarations in a will that they shall not take: the will must go further and designate others who shall take. Boisseau v. Aldridges, 5 Leigh 222. By similar reasoning, husbands cannot be deprived of their rights of property arising " jure mariti " by a deed which shall even declare that they should not have them, unless the deed further provided that they should go to others. If they be not by the deed, in the event that has occurred, turned over to any body, then it is not a " casus fœ deris, 'DD' not a case which the deed has provided for, but a " casus omissus, " one for which a rule must be found not in the deed, but in the general principles of the law. And these general principles give the property to the husband; enable him to qualify as the wife's administrator, and afterwards to keep possession absolutely for his own benefit, subject only to the payment of her debts. See 1 Lomax's Ex'rs 135, 136, 310, 311; Tate's Dig. 394-5, § 7. See also Code of Virginia of 1849, p. 541, § 4.
Even should it be held, then, that the words of the deed manifested an intention to take the subject from the husband upon the contingency that has happened, they failed to give it to others and only authorized the wife so to give it; and this she has never done. Of consequence neither the deed nor the wife has ever yet given the subject to others; and if given to others it can only be by operation of law. But there certainly is no rule of law which, under the circumstances, can give the property to others; though there is the general rule of law which does give it to the surviving husband.
It is worthy of remark, that in the recital of the deed, as well as in the express declarations of trust, while great care is evinced to secure the property to the separate use of the wife, and to give her the power to dispose of it, there is an utter absence of any expression or provision to point out how it is to go in case of her making no such disposition. The trustee, " his executors, administrators and assigns," are to permit the feme [[[[studiously omitting, apparently, her executors or administrators,] to enjoy the separate use of the property, and to dispose of it by deed, will or otherwise; and they are required to convey the legal title to the person or persons to whom she may convey the property. Now this omission is very strong to shew, [made as it was in a deliberate deed,] that as against the husband, the only parties intended to be preferred, certainly the only parties expressly preferred, were the feme and her appointees; and it is unnecessary to dwell upon the essential distinction between such appointees and the present antagonists of the husband. Indeed, it can scarcely be doubted, that in the case of Bray v. Dudgeon, 6 Munf. 132, the introduction of expression, where here there is omission, was the turning point of the adjudication. There, the deed expressly provided, that upon the failure of the wife to appoint, " her proper and legal heirs" should take; and it is manifest that it was this provision which excluded the husband alike from the administration and the property. A similar commentary obviously occurs in reviewing the case of Ward v. Thompson, 6 Gill & John. 349, in which the rights of the husband were held to be extinguished by the stipulation that without his interference in any manner the trust subject should be under the exclusive and entire management and control of the wife, " her heirs, executors, administrators or assigns," who, it was agreed, should " receive and enjoy the rents, issues and profits." The case of Marshall v. Beall, 6 How. S. C. R. 71, is explicable in the same way. And the governing principles applicable to the present case, and similar cases, are very luminously illustrated by Chancellor Kent in Stewart v. Stewart, 7 John. Ch. R. 229, 245, 246, 247, a case which takes what seems to be the true ground, that the marital rights of the husband, over the property of his wife, can only be extinguished by plainly and clearly giving that property to others, or by conferring on the wife, or her representatives, other than the husband, the power to make and accomplish such gift, and an execution by her or them of such power.
Besides, it is submitted, that the true construction of the recitals in the deed, does not authorize the inference that they are intended to deprive the husband entirely, at all events, and upon every contingency, of all rights of property in the trust subject. That passage in the recital, [omitted in the declaration of trusts,] which provides that the husband, in case of surviving the wife, should not claim any part of the trust subject, ought to be taken in connection with the rest of the deed: and so taken cannot properly be made to do more than stipulate that the husband, as against the claims of the appointees under the wife, [so appointed in conformity with the deed,] should not assert any conflicting or repugnant rights. This would reconcile all parts of the deed. Anything else would bring them in conflict. But should such conflict be brought on, the recital would have to give way to the declarations of trust. Mere matter of introduction could not over-ride the solemn provisions in the conveyance and the declarations of the trusts therein. Stewart v. Stewart, 7 John. Ch. R. 229; Sheph. Touch. ch. 5, p. 75, 76, note 62, 78, 77, 88, in 30 Law Libr.
If not precluded from taking the property, of course he is entitled to the administration.
Meredith, for the appellee.
The whole question is, who is entitled to the estate of Mrs. Charles? On the question who is entitled to administration there has been some vacillation in the decisions on the English statutes; but when the case came up between the husband and the next of kin, it was decided in favour of the husband; but he took the administration because he was entitled to the property; and only when entitled. Fielder v. Hanger, 5 Eng. Eccl. R. 265; Watt v. Watt, 3 Ves. R. 244; Bailey v. Wright, 18 Ves. R. 49; Fettiplace v. Gorges, 1 Ves. jr. 46; 1 Wms. Ex'ors 244; Toller's Ex'ors 85, 116; Cutchin v. Wilkinson, 1 Call 1; Hendren v. Colgin, 4 Munf. 231; Bray v. Dudgeon, 6 Munf. 132; Thornton v. Winston, 4 Leigh 152. These cases shew that the person entitled to the property is entitled to administration on the wife's estate.
The enquiry then is, what interest did Henry H. Charles take in his wife's estate. And this depends on the construction of the deed of the 8th of October 1835, executed by the parties. Pending the treaty of marriage the husband covenanted that she should have her own estate; and that he would not claim any interest in it if he survived her. The property of the wife was not property in possession, in which the title of the husband was perfected by marriage; or there would have been no necessity for administration on her estate. But the legal title was in the trustee and the beneficial interest was in the wife; and as there must be a joint interest, in order that one may take as survivor, there could be no title by survivorship in the separate property of the wife.
It is insisted by the counsel on the other side, that though it is true that the husband excludes himself, he should have gone further and pointed out some one else to take the property in the event of the intestacy of the wife. And Boisseau v. Aldridges, 5 Leigh 222, is relied on for the proposition. But there the son was no party to the instrument; here the husband is a party to the deed; and he in consideration of the marriage covenants that he will not take anything either during the marriage or if he survives the wife. This is all the husband could do. He had no right to say how the property should go; nor had he any interest which he could convey. All that he had was such an interest as he could only release and only release to her; and that he did, and thereby her title became perfect. King v. Bettesworth, 2 Strange's R. 1118; 2 Story's Equ. Jur. § 1382. This last authority and the cases there cited, shew that all the husband has to do, to exclude himself, is to create a separate estate in the wife, and that excludes him.
It is said that the wife should have made an appointment; and that it is only her appointee who can exclude the husband. The wife here stands as a feme sole, and has the power and the estate of a feme sole; and an appointment is unnecessary to pass her property. Here Mrs. Charles had a separate estate on which there was no limitation as to time; and therefore she had the power to dispose of it without regard to the power of appointment. Tappenden v. Walsh, 1 Eng. Eccl. R. 100; Fettiplace v. Gorges, 1 Ves. jr. 46; 2 Story's Equ. Jur. § 1389, 1390, 1394. In such a case it is not necessary that the deed or marriage agreement should direct who shall take the estate after the death of the wife without making an appointment. Bradley v. Westcott, 13 Ves. R. 445, 451; Barford v. Street, 16 Ves. R. 135; Anderson v. Dawson, 15 Ves. R. 532; Gackenbach v. Brouse, 4 Watts & Serg. 546.
OPINION
ALLEN, J.
The deed of marriage settlement duly executed by the parties and their trustee before marriage, recited amongst other things that it hath also been agreed, that in case the said Charles should after the intended marriage happen to survive the said Martha, that he should not claim any part of the real or personal estate whereof the said Martha should be seised or possessed or entitled to at any time during the coverture between them; and that the said real and personal estate of the said Martha should be in no wise under the control of the said Charles, nor in any manner or at any time subject to his debts. The deed then proceeds to grant the property of the intended wife to the trustee, and by the declaration of trust the separate and exclusive use of the property is secured to the wife; the trustee was to permit her to dispose of it by will or otherwise and to convey the property to such appointee or alienee: but in the declarations of trust there is no express provision excluding the husband in the event of his surviving, and in default of any appointment or disposition by the wife. And it is contended that by operation of law the husband surviving is entitled in virtue of his marital rights, to take the property, as she did not dispose of it or appoint the uses to which it should be applied after her death. The rights of the husband to the property of his intended wife may be intercepted by his agreement to that effect; and where by express contract, for which the marriage is a sufficient consideration, he agrees to surrender his right to the enjoyment of the property during the coverture, and his right to take as survivor, there remains nothing to which his marital rights can attach during the coverture or after the death of the wife. In such case the wife is to all intents to be regarded as a feme sole in respect to such property; and there would seem to be no necessity for any limitation over to her next of kin in the event of a failure to appoint during her lifetime. The husband having by contract for a good consideration released his rights as survivor, the property must pass as though she had died sole and intestate. That such was the intent of the parties in this case is clear from the deed. The contingency of his surviving was foreseen, and the agreement as recited in the deed signed by all the parties provided for it. By that agreement so recited, he bound himself not to claim the property should he happen to survive his wife. There is nothing to indicate an intention to restrict the claim as against the appointees of the wife. The expressions refer not to persons against whom he would not claim, but to the subject as to which in that contingency he released all claim; and to shew more clearly that such was the intent of the agreement, it is furthermore recited that the property was not to be under his control, or in any manner or at any time subject to his debts, not restricting the time to the continuance of the coverture.
Having thus by contract intercepted the marital rights of the husband either to enjoy during coverture or to take by survivorship; and this intention appearing on the face of the deed, it was only necessary that the declarations of trust should provide for the control and authority of the wife during the coverture. And the property, if not disposed of, passed to her personal representative for the benefit of her next of kin, as if no marriage had ever taken place, and she had died sole and intestate.
The right of the husband to administer depending on the question whether in virtue of the marital right he is entitled to the property, and as by the agreement recited in the deed of settlement he relinquished and renounced such right, his motion to administer was properly overruled, and the administration granted to the appellee, one of the distributees of the deceased. The order should be affirmed.