Smith v. Henry , 35 Miss. 369 ( 1858 )

Smith, C. J.,

delivered the opinion of the court.

This was a trial of the right of property, in the Circuit Court of Carroll. The plaintiff in error having recovered a judgment against one Henry, caused the execution, issuing thereon, to be levied upon a certain slave as the property of the said Henry, which was claimed by the party replevying, under a deed, by which the slave was conveyed, in trust to certain persons, for the use and benefit of Mrs. Nancy Henry. Mrs. Henry was tbe wife of the defendant in the execution. The cause was submitted to the court upon an agreed state of facts, and the issue was determined adversely to the plaintiff in the execution; whereupon he prosecuted this writ of error.

The trust-deed above referred to was executed in Alabama, on the 3d day of August, 1835. The rights of the parties, arising under the deed are, hence, unaffected by the late statute of that State, in regard to the rights of married women. The questions in the case arise, exclusively, upon the construction of the deed, and are, of course, to be determined with reference to the laws of that State as they existed at the date of its execution.

The clause of the deed, which alone it is material to notice, is as follows, to wit: “ That the -said trustees, or the survivor of them, shall permit my daughter, Nancy Henry, wife of James IT. Henry, to have and enjoy the use and possession of the said slave, Mary, and her future increase, for and during the natural life of the said Nancy; and after the death of the said Nancy, that the said trustees, or the survivor of them, shall and will convey unto the heirs of the said Nancy, the said slave Mary, and her future increase.”

The general question before the court was, whether the slave, levied upon, was subject to seizure and sale under execution at law. The determination of that question, necessarily depended upon the nature and character of the interest or estate which, under the clause of the deed above recited, vested in Mrs. Henry. If the interest conveyed by the deed, was the separate estate of Mrs. Henry, from which the marital rights of her husband were excluded, there can be no question, as the case is presented on the record, that the judgment was correct. Our first inquiry must, therefore, be directed to that point.

No prescribed form of words is essential to create a separate estate in a feme covert; it is altogether sufficient if the intention of the donor, grantor, or testator clearly and manifestly appears to exclude the marital rights of the husband. But while this principle is distinctly recognized, the courts of Alabama, upon a principle equally well recognized, favor the marital rights of the husband, and will not, in the dispositions of property for the benefit of married women, consider them as interfered with, unless there is a clear exclusion of the interest or control of the husband. And, differing from the general doctrine on the subject, they hold, that the intervention of trustees in dispositions of property for the benefit of femes covert, is of itself no evidence to confer a separate estate. But a distinction is taken between a gift or bequest to a married woman, and a gift or bequest to one unmarried. Much stronger terms are required to indicate an intention, in the donor or testator, in the latter case, to continue a separate estate after she shall have come under the protection and control of a husband, than in the case of a gift or bequest to a married woman. Lamb v. Wragg & Stewart, 8 Porter, 78; Hale et al. v. Stone, 14 Ala. R. 803.

In the case last cited, after a careful review of the cases on the subject previously decided by the Supreme Court of Alabama, it was laid down that the mere intervention of a trustee, in the absence of a clear intention to exclude the husband, will not have the effect to put in the wife a separate use. But if she, by the terms of the gift, be entitled to the usufruct in the property, and the same comes into the possession of the husband, the wife’s interest, whether for years, for life, or in fee, may be sold under' execution at law against him. In that case, referring to the case of Kennerly Smith ads. Cook, reported 12 Ala. R. 42, the court say, that it “is conclusive to show that the mere naked legal title, so outstanding in the trustee to preserve the remainder, gives him no power over the possessory interest in the slaves; and that such interest vests in the donee for life, who is entitled to the use. The trustee has nothing further to do with them than to convey, at the appointed time, the legal- title to those entitled to the remainder. The husband is found in the actual possession of them, which he has had for many years; and, in our judgment, the plaintiffs have a clear right to levy upon, and use, the interest of the wife which vested in him.”

It seems, hence, to follow, that the legal title subsisting in Fountain and Hogan, the trustees in the deed before us, to preserve the remainder limited to the heirs of Mrs. Henry, gave them no power over the possessory interest which vested in her. As to her, the trust was executed; the trustees had nothing further to do with the slave, or her future increase, than to convey, upon her death, the legal title to her heirs. It remains, then, to be ascertained, giving no weight to the fact that trustees were interposed, whether or no.t there is anything upon the face of the deed, which clearly manifests an intention in the donor to confer upon Mrs. Henry a separate estate.

If Mrs. Henry, at the date of the gift, had been a feme sole, we apprehend no question could arise; as, in our opinion, according to all of the cases in Alabama, the terms of the gift would not have continued a separate estate in her, after she should come under the protection and control of a husband. But she was covert when the deed was executed, and hence slighter terms were requisite, to indicate an intention in the donor to vest the possession and usufruct of the property in her, as her separate estate. Lamb & Wragg v. Stewart, 8 Porter, 73. And as no particular words, or form of expression, is necessary to the creating of separate estate in a married woman, we must look to the plain and certain intention of the donor, as expressed in the instrument.

The words, “ separate use,” or “ separate estate,” are not contained in the deed ; but, nevertheless, we cannot doubt that it was the intention of her father to give the slave in question to Mrs. Henry as separate property, from which the marital rights of her husband were excluded. The words, “ to have and enjoy the use and possession of the said slave,” mean nothing, if they do not import that it was the donor’s intention to exclude the rights of the husband. For if such were not clearly his intention, why provide that the donee should have the possession and enjoy the use of the property, if it was not his design to exclude the husband’s control ? Why insert such a provision in the deed, if the legal effect of it was, instantly upon the receipt of the property by the donee, to vest the possession and usufruct absolutely in the husband ? The right to have the possession, and enjoy the use, given to Mrs. Henry, clearly exclude the authority of her'husband, and seem to indicate as certainly, the intention to confer separate estate, as if the property had been given for her livelihood, which has been always held sufficient to show, that it was the donor’s intention that the wife should be entitled to the use, as her sole and separate estate.

This construction of the deed, is not in conflict with the decision in any case to which we have been cited, or which has come under our observation, decided by the courts of Alabama; and it is sustained by authority, as well as reason.

In Tyrrell v. Hope, 2 Atkyns, 557, an agreement or promise, made before marriage, by the husband to his wife, and which was held to constitute part of the marriage agreement, previously entered into by the parties, stipulated, “that the wife should enjoy and receive, the issue and profits of one moiety of” a certain estate, then in the possession of the wife’s mother, after the decease of the mother, was held to vest in the wife a separate use in the one moiety. The words, “ enjoy and receive,” were considered equivalent to an express declaration, that the “ issue and profits” of the one moiety, should be the separate estate of the wife. The word, “enjoy,” was considered, very strongly to imply a separate use in the wife; and the whole clause was held to be susceptible of no other construction, than that it was to be for her separate use: for to what end, said the Master of the Rolls, was the wife “ to receive it, if it is the property of the husband the next moment ?”

In the deed under consideration, the property was conveyed to trustees. That fact, however, as we have seen, would have little or no weight in determining the character of the interest which Mrs. Henry acquired; but it must be admitted, that the stipulation, by which she was “to have and enjoy the use and possession of the slave, and her future increase,” is quite as comprehensive, and as clearly indicative of an intention to confer separate estate, as a provision would be, by which she would have been entitled “to receive and enjoy the issue and profits” of the property conveyed to the trustees.

As we hold that the use of the property in controversy was vested in Mrs. Henry, as her separate estate, it becomes unnecessary to ascertain whether her interest in the slave, and her future increase, was an estate for life, or in fee.

Judgment affirmed.