Pennsylvania Co. v. Foster , 35 Pa. 134 ( 1860 )

The opinion of the court was delivered by

Lowrie, C. J.

It seems quite clear to us, that we must treat the tripartite agreement of the 3d March 1855 as creating a separate estate of the income thereon named for the benefit of Mrs. Cooper. It is so, because the principal is committed to a trustee to manage it, .and to pay the income to Mrs. Cooper on her receipt, as it shall become due, and free from all claim or interference of her husband. This arrangement contains all the elements of a trust estate, and therefore is subject to the principle of equity that the wife, Mrs. Cooper, has no power over it that is not expressed in the instrument by which the trust is created.

Is this equity principle affected or set aside by the Act of 11th April 1848, § 6? We think not; for the kind of separate estate thereby created is a legal one, and totally distinct from the equitable separate estate created by the tripartite agreement. The act creates a new kind of separate estate without abolishing the old one. In providing a mode of disposing of her new legal acquisitions of a separate estate, it does not include those equitable estates that are acquired by others in trust for her separate use. On the evidence given, the court below ought to have decided that the plaintiff below had shown no title. We see no other error in the case.

Judgment reversed, and a new trial awarded.