author: Jewett, Ch. J.

text:
    Vanderheyden and wife, appellants, vs. Mallory and Hunter, respondents.

    The separate estate of a married woman is not liable at common law for her debts contracted before marriage; and the only ground on which it can be reached in equity, is that of appointment, i. e. some act of hers after marriage indicating an intention to charge the property.
    The bankruptcy of the husband, although it extinguishes the debt as t) him, and suspends the legal remedy as to her during the coverture, does not afford any ground for proceeding in equity to charge her separate estate.

      The creditor in such a case may prove his debt and share in the distribution of the bankrupt’s estate.
    A feme sole, having contracted a debt, and owning some shares of bank stock, married. After marriage, the stock, with the consent of the husband, was transferred to a third person for the purpose of having it transferred back to her for her sole and separate use, which was accordingly done. She also held other shares of bank stock which had been transferred to her separate use by the executor of her father’s estate. The creditor sued the husband and wife at law, and being met by a plea of the husband’s bankruptcy, discontinued. He then filed a bill in equity for the purpose of reaching the bank stock. No fraud in the transfer to the wife’s separate use being alleged, nor any act of the wife alter marriage indicating an intention to charge this fund; held, that the bill could not be sustained.
    It seems, that when a debt is contracted by a woman during coverture, either for herself or as surety for her husband, this will be prima facie evidence of an appointment or appropriation of her separate estate to the payment of the debt.
    But this doctrine has no application where the debt was contracted by the woman before marriage. The act of marriage does not raise an appointment; nor does a promise by her and her husband to pay the debt out of some other fund not conveyed to her separate use, e. g. a legacy or distributive share in her former husband’s estate, enable the creditor to reach her separate estate.
    The law casts upon the husband a temporary liability for the debts of the wife contracted before marriage. This liability ceases with the coverture, unless judgment has been recovered against both. If the wife survive the husband and judgment have not been recovered, her sole liability revives. Per Jewett, C. J.
    The bankruptcy of the husband extingrishes the liability as to him; but it revives against the wife if she survive her husband. Per Jewett, C. J.
    Appeal from chancery. Joel Mallory and John Hunter filed their bill in the court of chancery against Levinus Vanderheyden and Lenchy his wife, stating the case in substance as follows : Between the 30th day of April, 1835, and the 6t,h day of December, 1837, the said Lenchy being during that period the widow of John J. Bradt and a feme sole, became indebted to the complainants in the sum of $2022,95, for goods sold and moneys advanced at different times. The bill averred that the complainants credited her in this sum upon the knowledge that she was entitled to a large amount of property from the estate of her late husband. The complainants were indebted to the estate of Bradt in a large sum, and while their account was accruing against Lenchy she agreed with them that she would make an arrangement with the executor of Bradt to have such account applied against their indebtedness to that estate.
    On the 6th of December,. 1837, the said Lenchy and Levinus intermarried, and between that time and February, 1843, they frequently promised that the account against Lenchy should be arranged in the manner above stated, and in the expectation that this would be done the complainants neglected to enforce the demand: but about the time last stated they refused to make such arrangement or any other for the payment of the debt. The complainants therefore, in May, 1843, instituted a suit in the supreme court against Yanderheyden and wife upon such account, to which they pleaded in bar that on the 17th day of April, 1843, the said Yanderheyden was discharged as a bankrupt from all his debts under the act of congress passed August 19,1841. This plea was true in fact, and the complainants, .being advised that it was an effectual bar, discontinued the suit.
    The bill further stated that during the time the complainants’ account was accruing against' Lenchy, she was worth a large amount of property bequeathed to her by her late husband, a large part of which "was unpaid to her and yet remained in the hands of the executor, but a portion of which had then been received by her and invested in bank stocks; that before any part of the complainants’ demand accrued against her, she was the owner of thirty-five shares of bank stock, (the value of which was $2100,) which stood in her own name; that she continued to be the owner of those shares while such demand was accruing, and was still the owner thereof in her own right; that after her marriage with Yanderheyden, she, with the advice and consent of her husband, transferred said thirty-five shares to a third person, for the purpose of having the same transferred back to her for her sole and separate use, which was immediately done, so that at the filing of the bill she held those shares in her own name and to her sole and separate use: also that at the filing of the bill she was the owner in her own right of nineteen other shares of bank stock, received by her out of the estate of her father, and which the executor of that estate had transferred to her sole and separate use: also that she was possessed in her own name and right of a large amount of other property.
    The prayer of the bill was that Lenchy Vanderheyden might be decreed to pay the complainants’ demand, and to apply for that purpose her separate property before mentioned, or so much thereof as should be necessary, and for general relief. The defendants demurred to the bill, as well generally for want of equity, as for reasons more specially assigned. Their demurrer was overruled by the vice chancellor of the third circuit, to whom the case was referred for hearing, and his decision was affirmed by the chancellor on appeal. The defendants appealed to this court.

      N. Hill, Jr. for appellants;
    I. The debt in question was not contracted under circumstances giving the respondents’ a right to proceed against the separate property of Mrs. Vanderheyden, nor has any thing been done by her since which gives such right. It was contracted by Mrs. Vanderheyden ás a feme sole, and the bill does not pretend that the bank stock in question was even an inducement to the credit given her. On the contrary, it alleges that the- complainants relied upon means which they expected she would derive from the estate of her former husband, and not upon the bank stock, which she then owned. The subsequent acts of Mrs. Vanderheyden show no intention to charge the bank stock with the complainant’s debt, but only the property held by Bigelow, as executor of her former husband. The only ground upon which the separate estate of a feme covert can be reached in equity is that of appointment; i. e. some act on her part clearly evincing an intention to charge the property proceeded against. And as to the bank stock in question, such an intention, so far from being shown, is disproved by all the circumstances. (2 Story's Eq. § 1399; 2 Rop. Husb. and Wife, 241 to 244.)
    But the doctrine of appointment has no application to this case. That relates exclusively to acts done by married women as such; and there is no pretence that Mrs. Vanderheyden, since she married her present husband, has done any act which can be construed into an appointment, either express or implied. (2 Story’s Eq. §§ 1398, 1399, 1400.) No case holds that the mere act of marriage raises an appointment by implication ; and therefore the most the complainants can claim is, that their demand is a general debt of the wife, contracted on her general personal responsibility. And the authorities agree that, for such a debt, her separate property cannot be reached in equity, any more than at law. (2 Story’s Eq. § 1398; 2 Rop. Husb. and Wife, 241 to 244.) The chancellor does not put his decision upon the doctrine of appointment, but upon an assumed equity, arising out of the husband’s discharge in bankruptcy ; and he admits that no precedent can be found for the decision except Biscoe v. Kennedy, (1 Brown’s Ch. Cas. 18, note.) We contend that he erred, for the following reasons: 1. The husband’s discharge in bankruptcy creates no such equity as against the wife. Though the remedy by action is barred, the creditor can prove his debt, under the commission, and thus reach the property of the husband .not only, but all the property of the wife not settled to her separate use. (Bankrupt Act, 1841, § 3; 4 Paige, 73, 4.) 2. The same species of equity exists, therefore, upon principles of natural justice, where the remedy by action proves inadequate, by reason of the husband’s pecuniary inability: and yet no one pretends that this furnishes ground for charging the wife’s separate estate. 3. The decision subjects the separate property of the wife for her general debts, contracted, upon her general personal responsibility, which is contrary to law. (2 Story’s Eq. § 1398; 2 Rop. Husb. and Wife, 241 to 244.) The case of Biscoe v. Kennedy, relied on by the chancellor, ought not to govern the present question. It is not found in any regular series of reports, but only in a note furnished the reporter by counsel. It ha.s never been acted upon, or even referred to since, by any judge or writer, till the decision of this case. (Ram on Leg. Judg. 49, 50.) Brown’s Reports are at best but poor authority. (Greer.l. Overr. Cas. 57; Ram on Leg. Judg. 101.) The particular reasons for the decision are not stated, and cannot be ascertained. (Id
      21.) The controlling reason may have been that the husband was regarded as civilly dead after outlawry, and the wife thus restored to her capacity as a feme sole. (2 Kent’s Com. 158 ; 2 Wm. Bl. Rep. 1081, 2.) Or the reason may have been that the settlement on the wife was fraudulent as to creditors, and so the property was the husband’s; that being the only ground taken by the counsel who argued the cause. The absence of all reliable authority in favor of the principle assumed by the chancellor, tends strongly to prove that no such principle exists. (Ram on Leg. Judg. 156, 7.)

    II. The discharge in bankruptcy of Mr. Vanderheyden operated as an extinguishment of the debt against his wife, at least during coverture. The debt was proveable under the bankrupt act, and therefore is extinguished, at least during, coverture. (Bank, act, §§ 4, 5; 12 Verm. Rep. 510, 511; 13 Pick. 64, 67.) The very fact that the bankrupt act operated to discharge the husband is conclusive to show that the complainants’ claim is a debt, within the meaning of the act. If so, it is extinguished. The discharge operates upon the debt in the same manner as a release of the husband by the creditor, and of course extinguishes it. Moreover, it has been expressly decided that the wife’s debts dum sola, are absolutely extinguished by the husband’s discharge as a bankrupt or insolvent. (2 Nev. & Mann 255; 10 Mod. Rep. 243; 1 P. Wms. 249 ; Gilb. Eq. 318; Reeve’s Dom. Rel. 71; 2 Kent's Com. 146.) The reasoning on which these cases are based applies to the remedy in equity as well as at law. And the bankrupt act declares, moreover, that the certificate shall be a full and complete discharge of all debts, in all courts, fee. and may be pleaded as a full and complete bar to all suits brought in any court. (Bank, act, § 5.)
    III. The bill is not framed to reach the bank stock on the ground that there was fraud in transferring it to the wife’s sep arate use. On the contrary, it treats the bank stock as her separate property, and seeks to reach it as such, thus conceding the validity of the transfer.
    IV. There is no equity in this case. The bill shows that independent of the bank stock, the husband acquired a large

      amount of property from his wife. The complainants might have reached this by due diligence, but chose to wait until the husband’s other creditors had exhausted it, and now claim to seize the small remnant in question. The wife has been obliged to submit to the disadvantages arising from bankruptcy, and is therefore entitled to share in its advantages.

      Y. But the bill shows that the complainants have not exhausted their remedy against the husband’s estate. Equity requires that they should prove their debt under the commission, and only resort to the wife’s separate property, for the balance.

      D. Buel, Jr. for the respondents.
    I. The doctrine established in the courts of equity in the earlier as well as in the more recent cases is, that a married woman, as to her separate property, is to be deemed a feme sole, and. therefore that lier engagements, although they would not bind her person, should bind her separate property. Among the numerous early cases are the following: Peacock v. Monk, (2 Ves. sen. 190;) Hulme v. Tenant, (1 Brown’s Ch. C. 16,) and the cases cited in Mr. Eden’s note; Lillia v. Airey, (1 Ves. 277;) Balpin v. Clarke, (17 id. 277.) The most recent cases in England accord with the early cases, and establish the position, that if a feme covert having separate property obtains credit, her separate property .shall be subject to the debt without any special appointment r#i charge, written or verbal. (Murrey v. Burlee, 4 Simons’ Ch. Rep. 82, S. C. 6 Eng. Ch. R. 43; Same case on appeal to Ld. Ch. Brougham, 3 Mylne & Keen, 209, and 9 English Ch. R. 1; Owen v. Dickinson, 1 Craig & Philip, 48.) The American cases, and especially those decided in the court of chancery of this state, and the late court of errors, go the full length of the earlier and more recent English cases. (N. A. Coal Co. v. Dyott, 7 Paige, 9, S. C. on appeal, 20 Wend. 570; Gardner v. Gardner, 7 Paige, 112, S. C. on appeal, 22 Wend. 526; Jacques v. The Methodist Episcopal Church, 17 John. 548, per Spencer, C. J. and Platt, J.)

      II. The facts stated in the bill and admitted by the demurrer present at least -as strong a case -for the exercise of the power of the court over the separate property of Mrs. Vanderheyden, as would have been presented if the debt had been contracted subsequently to her marriage to Vanderheyden, for, 1. The debt was contracted on the credit of her being the owner of property derived from her former husband, and from her father, which she has continued to own, and still enjoys. 2. The stocks sought to be subjected to the complainants’ debt were transferred to her sole and separate use on the advice ot her husband, and shortly before his bankruptcy, and were thus kept from passing into the hands of the assignee in bankruptcy; and 3. Vanderheyden, by his- discharge in bankruptcy, is forever exonerated from personal liability for the debt, and no suit at law can be brought against his wife during her husband’s life. (Miles v. Williams, 1 P. Wms.. 258.)
    The consequence of denying the prayer of the bill would be to enable Vanderheyden to make use of his bankrupt discharge, not only to rid himself of his own debts and free himself from suits for his wife’s debts, but by a new species of subrogation to take the place of her creditors in respect to her separate property, and instead of having it applied to pay debts which were contracted on the credit of it, quietly enjoy it himself. It is not strange the chancellor felt so strongly the injustice of allowing the defendants to put the complainants at defiance, in respect to the=wife’s separate property, as to induce him to declare that if a precedent for granting the relief asked for was wanting, he should deem it his duty to make one. But the chancellor did not find it necessary in this case to change the law or make a precedent.' A case was decided by Sir Thomas Clarke, master of the rolls in 1762, which is analogous and fully sustains the grounds on which the bill was filed. (Briscoe v Kennedy, 1 Brown's Ch. C. 18, reported by Mr. Eden in note to Hulme v. Tenant.) The only difference between that case and ours is, that in Briscoe v. Kennedy a suit at law was instituted against husband and wife, and the husband (who was out of the realm.) prosecuted to outlawry before the court sustained the bill. But" outlawry in civil cases is a mere process. It is not civil death, nor equivalent to a divorce. (Bac. Abr. Outlawry, D. 2.) In our case, the defendants in the suit at law, pleaded the bankrupt discharge. In both the remedy at law was resorted to and exhausted before filing the bill. The authority of Briscoe v. Kennedy, therefore, furnishes a precedent in point.
    III. But it is objected that the effect of the bankrupt discharge of Vanderheyden was not only to exonerate him from the claim, but that it cancelled the debt against the wife and her property, and destroyed all remedies in equity as well as at law for the debt. This proposition, which the appellants’ counsel endeavored to sustain by a remark of Ch. J. Parker, in Miles v. Williams, (1 P. Wms. 258,) we deny. ' The point was not involved in that case. And so the chief justice virtually admits. He says: “ It will be a discharge to her, at least a temporary one, viz: during the husband’s life. But though it be not necessary to give any opinion upon that, yet I think it will amount to a perfect release, and the wife will be discharged forever.” The opinion respecting the effect of the certificate being an absolute discharge of the wife front the debt, is clearly and avowedly an obiter dictum, and no decision sanctioning it as law in any cáse where the question directly arose, can, we think, be produced. It would destroy the symmetry of the law respecting -the relation of husband and wife. If-the wife dies before judgment is obtained against the husband, he is not liable; but if she survives him, site is liable. "Why should a discharge of the husband in bankruptcy have a greater effect in releasing the wife’s debts, contracted dum sola, than his death? (Clancy on the rights of married women, 13 to 16; Reeve’s Dom. Rel. 68, 69; 2 Kent’s Com. 143, 144, 4th ed.; Woodman v. Chapman, 1 Camb. R. 189, and notes; Heard v. Stamford, 3 P. Wms. 409 ) There is nothing in the bankrupt law of 1841 that gives to the discharge of the husband the effect contended for by the appellant. The 4th section provides, that every bankrupt complying with the provisions of the act “ shall be entitled to a full discharge from all his debts.’ As the wife’s debts did not become hie debts by the marriage, why should a discharge from his debts release the debts against her? The common law doctrine, that if one of two or more joint debtors is released, the release operates to discharge the others, cannot apply; for the husband is in no sense a joint debtor with the wife, as to her debts contracted dum sola, before judgment obtained against them.
    IY. If it is objected that the stocks are not held by a trustee, but invested in Mrs. Yanderheyden’s own name, we answer, that the husband will be deemed her trustee; and it was therefore necessary to make him a party to this bill. (2 Kent’s Com. 4th ed. 162, and note (b,) in which the authorities are collected ; also 2 Story’s Eq. 3d ed. §. 1380, and note 3.)
    Y. As to the objection that the .complainants should have resorted to the assets of Vanderheyden, in the hands of the assignee in bankruptcy; we answer, 1. That it will be time enough to meet that question when it shall be set up in the defendants’ answer and proved that any assets were transferred. 2. Vanderheyden was a voluntary applicant and must have been insolvent, and the court on a demurrer to the bill will not presume that the debt may have been satisfied out of property in the assignee’s hands. 3. As this debt was not the debt of Vanderheyden, (as before shown,) it is questionable whether the complainants would have a right to claim distribution of any assets which Vanderheyden may have possessed. They cannot be considered as creditors of Vanderheyden. He was never their debtor. It seems clear, therefore, that they could not come in for distribution if there were any effects to distribute. (Bankrupt act, § 5.) But, if there were assets of Yanderheyden in the bands of the assignee, and if such assets could legally be applied towards this demand, it would be more equitable to leave them for his creditors, and require the complainants to seek satisfaction for their demand out of property on the faith of which the credit was obtained.
   Jewett, Ch. J.

By the common law a married woman is disabled from disposing of either real or personal estate during the marriage, with the exception of the former by fine, and, by our law, by any legal conveyance executed under a due examination ; and of the latter with the privity and concurrence of her husband. That being the legal'rule, a married woman cannot, at law, bind herself personally by any contract in re gard to her separate property. In conformity with this principle courts of equity hold that her general personal engagements will not affect her separate propérty. And to this extent courts of law and equity act in concert. But as a consequence of the principle established that a married woman may take and enjoy property to her separate use, courts of equity enable her to deal with it as a feme sole. The right of disposition or appointment is an incident belonging to such interest and power. She may sell, pledge, or incumber her separate estate when she shows an intention so to dispose of it, in the same manner as if she -were a feme sole, unless specially restrained by the instrument under which she acquires it; and every security thereon executed by her is to be deemed an appointment pro tanto of the separate estate. (Hulme v. Tenant, 1 Brown's Ch. 16 ; Fetteplace v. Gorges, 1 Ves. jr. 46 ; 2 Story’s Eq. Jur. §§ 1392, 1399; Jaques v. The Methodist Epis. Church, 17 John. R. 549; Gardner v. Gardner, 22 Wend. R. 526.)

The great difficulty is, to ascertain what circumstances, in the absence of any positive expression of- an intention to charge her separate estate, shall be deemed sufficient to create such a charge, and what sufficient to create only a general' debt. But it is agreed, that there must be an intention to do so, otherwise the debt will not affect her separate estate.

The fact that the debt has been contracted by a woman during her coverture, either as a principal or as a surety, for herself, or for her husband, or jointly with him, seems ordinarily o be held prima facie evidence to charge her separate estate without any proof of a positive agreement or intention so to do. (3 Story’s Eq. Jur. § 1400.)

The doctrine of appointment or appropriation in equity, however, relates wholly to engagements made or debts contracted by a.married woman, as such, having a-separate estate, and in reference to it. It has no application to debts contracted or engagements entered into by a feme sole.

The bill contains no allegation that Mrs. 'Vanderheyden, after her marriage with her present husband, did any act or made any engagement with or promise to the complainants in reference to their debt against her or in reference to her separate estate, other than, it is alleged, that soon after the intermarriage of the defendants and at several different periods subse quently, one of the complainants made application to them, urging them to make some arrangement by which the appli cation of the debt due to the complainants from said Lenchy would be made oil the debt which they owed the estate of Bradt in the hands of his executor, and that they, until about the month of February, 1843, constantly upon every request so made, evinced a desire to have an arrangement made with the executor of Bradt by which such application would be made, and that they agreed that such an arrangement should be made. This is all that the bill contains of acts charged upon Mrs. Vanderheyden since she has been a married woman, to sustain a claim of an appointment in equity by her for the payment of the complainants’ debt out of her separate estate ; and this, it seems to me, falls far short'of bringing the claim within any principle heretofore established in equity. Even if Mrs. Vanderheyden had contracted the debt subsequently to her marriage with Vanderheyden, the facts charged expressly negative the idea that she. intended to pay, or that the complainants expected to be paid, their debt, out of what is now denominated her separate estate. The allegation in that respect is, that there was a large amount due to her from, and that she had a claim upon, the estate of her late husband, Bradt, out of which she agreed to make an arrangement with nis executor to enable the complainants to have applied upon the debt which they owed Bradt in the hands of his executor, the amount of the debt which she had contracted and should contract with the complainants, and that the complainants knowing that she was thus entitled and would have abundant means therefrom to pay any debt she might contract with them, credited her. It is nowhere alleged that any part of the amount to which Mrs. Vanderheyden was entitled from the estate of her former husband, out of which she promised to pay, and out of which the complainants expected to be paid in the manner stated, has ever come to her hands. For any thing appearing in the bill, the same remains in the hands, of Bradt’s executor, or has been collected and received by Vanderheyden, or if not, has passed to the assignee in his proceedings in bank ruptcy. The thirty-five shares of bank stock was owned and held by her from 1833 to July, 1842, when it was formally transferred to her for her separate use. The residue of the stock which is now held by her in that character did not come from the estate of her former husband. It is a part of her share bequeathed to her by her father. And although it is alleged that Mrs. Vanderheyden now holds in her own right and name a large amount of other property, it is not averred that it was all or any portion of her share in, or claim upon, her former husband’s estate, in the hands of his executor, at the time of the accruing of her indebtedness to the complainants, in refer ence to which exclusively, she when sole, and she and her present husband since their intermarriage, it is alleged, so agreed to make an arrangement respecting the payment of the complainants’ debt. Therefore I see no ground stated in the Dill, which would authorize a court of equity to subject the separate property of Mrs. Vanderheyden to the payment of the complainants’ debt against her. There is nothing which gives countenance to the idea, that she ever, either before or since her marriage, made any contract with the complainants indicating any intention to affect, by it the property which she now holds to her separate use; but on the contrary,, the bill expressly negatives such intention. The whole dealing and contract, as well orior as subsequent to her marriage, referred to other and different property as the means of paying the debt contracted by her. It is true, that prior to her marriage all of her property was liable for the payment of this debt upon a judgment and execution against her; and even after her marriage her separate property might have been subjected to it upon a judgment and execution against her and her husband, if the transfer of it or any part of it to her separate use was fraudulent as against her creditors; but that is not alleged, and of course no decree at any time, either before or since the discharge of the husband, could be made subjecting such separate property to the payment of the debt upon-that ground.

It is further insisted by the defendants that the discharge in bankruptcy of the husband operated as an extinguishment of the debt against the wife, at least during coverture. It is argued that it extinguished the husband’s liability for the debt. It could not operate to extinguish the debt as against the wife, unless it was the husband’s debt absolutely and exclusively. The effect of the discharge is to extinguish his, not her debts. By the marriage, the law cast upon the husband a contingent and temporary liability for all the debts and demands against the wife contracted by her before coverture, if sued and judgment recovered against both, before her death, but not after. If the wife survive her husband, her sole liability revives. She may then be sued upon all her contracts made before marriage, which remain unsatisfied. The husband’s liability is gone by his death, and no liability is left upon his representatives. (1 Chit. Pl. 44.)

The case of Miles v. Williams, (1 P. Wms. 249.) was referred to as an authority to show that the debt is extinguished by the discharge, as well'against the wife as the husband. That was an action of debt against husband and wife, upon a bond made by the wife dum sola. The defendants jointly pleaded in bar the discharge of the husband in bankruptcy after the intermarriage, to which the plaintiff demurred. One question was whether, it being debt on a bond given by the wife dum sola, it was such a debt as should be discharged by the bankruptcy of the husband by virtue of the statute 4th Ann, ch. 17, mentioned in the plea. The words of the clause upon which it depended are, “ that the bankrupt shall be discharged from all debts by hi'm due and owing at the time he became bankrupt and then, in case he be sued for any such debt, the act directs “ that he shall and may plead in general that the cause of action did accrue before he became bankrupt.” It was held that it was the husband’s debt within the meaning of the statute, and that the discharge was therefore a bar to the action. And as to the wife, it was said that it was a discharge as to her, at least a temporary one, to wit, during the husband’s life'; and the chief justice added, that he thought'it-would amount to a perfect release, and the wife would be discharged forever. But it was admitted that the decision of that case did not call for any opinion as to the effect of the discharge upon the debt in regard to the wife.

The 4th section of the United States bankrupt act of August, 1841, provides that every bankrupt who shall bona fide surrénder all his property,” &c. shall unless, &c. “be entitled to a full discharge from all his debts, to be decreed and allowed by the court which has declared him a bankrupt, and a certificate thereof granted to him by such court accordingly upon his petition filed for such purpose.” Provided, that no discharge of any bankrupt under this act shall release or discharge any person who may be liable for the same debt as "a partner, joint contractor, endorser, surety or otherwise, for or with the bankrupt.” And again ; Ahd such discharge and certificate, when duly granted, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts and other engagements of such bankrupt, which are proveable under this act, and may be pleaded,” &c.

That this debt, as against the husband in his proceedings in bankruptcy, was proveable, admits of no doubt; but that does not necessarily affect the question whether the discharge Operated to extinguish the debt as against the wife. Unless it was a debt proveable under the act, the husband would not be discharged from it, for the discharge as to him only operates upon debts of that character.

The difficulty in holding the husband’s discharge to be an ex-tinguishment, of the debt absolutely, is raised by the principle that (he debt existing against the wife before coverture is not Ivans ferred from her to the husband by the marriage. The legal effect of that is to suspend the individual liability of the wife, and to create and cast upon the husband and wife a joint liability for the payment of the debt, to continue during the coverture and no longer, unless in the mean time judgment shall be recovered against- them. And when that terminates by the death of either, the liability thus created ceases; and if the wife survive her husband, her individual liability for the debt revives, unless indeed the debt is paid, released, or judgment is recovered during the coverture. The nature of the debt is not changed by marriage ; that is only done by the recovery of a judgment against the husband and wife. It then becomes the debt of the husband, and may be enforced against him and his property after the death of the wife. And in case of the death of the wife leaving her husband surviving, he is no longer liable for the debts of the wife contracted by her before marriage, where a judgment has not been recovered: but he as her administrator would be liable for such debts to the extent of the assets which he should receive, if he took administration on her estate to which he would be entitled; and if he should not take administration on her estate, he would be presumed to have assets in his hands sufficient to satisfy her debts, and would be liable therefor. (1 R. S. 75, § 29; 2 Kent's Com. 5th ed. 116, 411.) My conclusion is that the husband’s discharge operated to extinguish his liability for the debt of the wife, and would be a bar, if pleaded, to any action brought against him and his wife for the recovery of any debt contracted by her before their imarriage, and to suspend the remedy for the recovery of such debt as against the wife during coverture.

The chancellor did not (as the vice chancellor seems to have done) place his decision upon the doctrine of appointment in equi ty by the wife for the payment of the debt, but upon a supposed equity resulting from the fact that the husband’s liability for the debt had been extinguished by his discharge under the bank rupt act, and the complainants’ remedy at law against the wife and her estate suspended during coverture. And upon this ground the chancellor held that they could come into a court of equity to subject her separate property to the payment of then-debt, although the husband is still living, and although the wife’s separate estate, during the life of her husband, is not liable, generally, for debts contracted by her before the marriage. The only case relied on by the chancellor as an authority for his decision is the case of Biscoe v. Kennedy, (1 Brown's R. 18, n.) decided at the rolls in 1762, which was this: The defendant, Jane Kennedy, when a feme sole,,was indebted to the plaintiff, Biscoe, in £114, by bond, 22d April, 1755, .and was possessed of several leasehold houses and £1000 East India stock. By settlement, on her marriage with the defendant James Kennedy, all her personal estate (excepting £500 East India stock which the husband was to have) was conveyed to the defendant MacCollock, in trust for the separate usé of the defendant Jane. The marriage having taken effect, the plaintiff filed his bill (without having sued the husband) to have the separate estate of the wife applied to the payment of the debt; which was dismissed. The plaintiff then sued out writs against the, husband and wife; but the husband absconding, could not be served, and the plaintiff proceeded to outlawry, and then filed the bill to be paid out of the separate estate of the wife. The defendant insisted that during her husband’s life her separate estate was not liable to this debt, contracted by her while sole. The plaintiff contended that the settlement was, as to him, fraudulent. The master of the rolls, upon the hearing, declared that upon the circumstances of the case the effects of the defendant vested in her trustee were to be considered as the property of a feme sole, and ordered the plaintiff’s debt and costs to .be paid out of the £500 East India stock in the hands of her trustee.

The declaration that the property vested in the trustee for the use of the wife should be considered as the property of a feme sole, was in accordance with well settled principles, and in regard to which it is well settled that she is to be treated as a feme sole, having the general power of disposing of it, but without capacity to charge herself personally. But upon wha principle the decree followed that the debt should be paid out of her separate property, during the lifetime of her husband, is not clearly stated, and cannot with any certainty be ascertained from the statement of the case or the decision of the court. The ground may have been that the wife was deemed to be restored to her capacity as a feme sole, capable of suing and being sued without her husband, regarding him as civilly dead after the outlawry, (2 Kent's Com. 154, 5th ed.; 2 Bac. Abr. tit. Baron and Feme, M. 64; Hyde v. Price, 3 Ves. jun. 444.)

If by the discharge of the husband in bankruptcy, an equity is created against the wife, to subject her separate property to the payment of the debt .during the life of her husband, it would be difficult to give a good reason why such equity would not arise in every case where such creditor had exhausted his remedy against the husband and -wife at law and in equity without satisfying his debt by reason of the pecuniary inability of the husband, and yet it has not as yet been suggested that such equity would arise in that case. The right of the creditor to be paid his debt, would be .no stronger in the one case than in the other, and the remedy would be no more inadequate to meet the justice and equity of the case in the one than in the other. By the decree declaring the husband a bankrupt., all the property and rights of property of the wife to which the husband became entitled, either absolutely or qualifiedly, by the marriage, undisposed of previously, in addition to his other property, by operation of law became vested in the assignee in bankruptcy, subject to the wife’s right by survivorship; (Van Epps v. Vandeusen, 4 Paige, 73 ; §3 of the U. S. Bankrupt act of August, 1841; Mitford v. Mitford, 9 Ves. Jr. 87;) in which the complainants were entitled to share on proving their debt pro rata, with all the other creditors of the husband, with certain exceptions specified in the bankrupt act. (See § 5.) And this is the remedy given by law to the creditors of a bankrupt to meet the equity and justice of their case; and for any thing alleged in the bill, the complainants might have realized their entire debt if they had pursued this remedy. At all events, if they refuse or neglect this remedy, they do not present any very high claim upon a court of equity, to alter the law to enable them to have applied the separate property of the wife, to the payment of their debt, in advance of the legal period, when it might be so subjected, namely, when the marriage shall be dissolved by the death of either husband or wife. There is no remedy for the wife to have applied any portion of the property which passed to the assignee in bankruptcy, to satisfy the complainants’ debt. But they have such remedy, and although they have a remedy upon the separate property of the wife on the termination of the marriage by the death of either husband or wife, I think the wife has a strong equity against the complainants, requiring them to assert their right under the proceedings in bankruptcy.

The equity which the chancellor assumed, as arising out of the husband’s discharge in bankruptcy, in this case, is veiy nearly akin to the equity which prevailed in the case of Freeman v. Goodham, (1 Cas. in Chan. 295,) where a feme sole bought goods, but did not pay for them, and afterwards married and died, having brought a good portion, which came to the hands of her husband, who, on the creditor’s filing a bill against him to be paid for the goods, demurred; and when Lord Chancellor Nottingham overruled the demurrer, saying with some earnestness, that he would change the common lan, in that point. And in the case of Powell v. Bell, (Abr. of Cases in Eq. 16 ; Pre. in Chan. 256,) where it was decreed that the wife who had contracted debts dum sola being dead, the husband should account for what he had received with her, and should be so far liable to her debts; it being insisted that one precedent relieving a creditor, was more to be regarded than three to the contrary. But these cases were disregarded or overruled, and the principles of the common law sustained and applied under the like circumstances, in Earl of Thomard v. Earl of Suffolk, (1 P. Wms. 470,) and in Heard v. Stamford, (3 id. 409.) The last case was this. A feme sole was indebted to her sister in £50, by note. She married and brought a personal estate to the value of £700 to her husband, with whom she lived about a year and a quarter, and then died. The creditor by note never recovered judgment against the husband and wife, and the debt remained unpaid. The husband, on the wife’s death, administered to the wife. The sister married, and with her husband brought a bill against the defendant, and finding that the dioses in action of which the wife died possessed were not sufficient to pay the £50 debt which the wife owed dum sola; it was prayed that the defendant, the husband, for so much as he had received out of the clear personal estate of the wife upon his marriage, should be made liable to answer the plaintiff’s demand. And it was insisted to be but common reason and justice, that as the wife was the owner of a visible estate upon the credit of which the plaintiff might have entrusted her; so he that had such estate should pay the debt, which he might well afford to do; that it would be a case full of hardship, if a feme sole who, in ready money, goods, jewels, &c. might be worth £10,000, and might owe £1000, should afterwards marry and die, that on her death her husband should go away with the £10,000, and not be obliged to pay one farthing of his wife’s debts. This would prove of the most pernicious consequences to the creditors; whereas, on the other hand, the husband could have no rea son to complain of being liable to answer their demands, as far as he had received a fortune with his wife; and the cases of Freeman v. Goodham and Powell v. Bell were cited to show that such equity had been established under like circumstances. But Lord Chancellor Talbot said it was extremely clear, that by law the husband was liable for the wife’s debts only during coverture, unless the creditor recover judgment against him in the wife’s lifetime; and that he did not see how any thing less than an act of parliament could alter the law; that the wife’s dioses in action were assets, and would be liable, but they, it seemed, were not sufficient in the principal case to answer the demands; that in the case of Freeman v. Goodham there was some reason for the court to be provoked, when the goods themselves continued, after the death of the wife, in the hands of the husband, ivho notwithstanding refused to pay foi them. If he relieved against the husband because he had sufficient with his wife wherewith to satisfy the demand in question ; by the same reason, where a feme indebted dum sola afterwards marries, bringing no fortune to her husband, and judgment is recovered against the husband, after which the wife dies, he ought to grant relief to the husband against such judgment, which he said was not in his power; consequently there could be no ground for a court of equity to interpose in the case before him; that if the law, as it then stood, be thought inconvenient, it would be a good reason for the legislature to alter it; but till that was done, what was then law must take place. The remarks of the lord chancellor in that case may well be applied to the circumstances of this case.

It is extemely clear, that by law the wife, or her separate property, are not liable for the debts which she owed dum sola, during the life of her husband; and I do not see how any thing less than an act of the legislature can change the law. And from the circumstances of this case, I dó not discover any reason even, for the court to be provoked on account of the exist ence of such rule of law; as it seems that the wife carried to the husband a large personal estate irrespective of her separate property, the same to which she was entitled and which in duced the complainants to give her the credit, and that nearly five years elapsed after the marriage, before the husband applied to be decreed a bankrupt, during which period it is fair to presume the complainants might have collected their debt, by proceedings against the husband and wife, out of the property which the husband received or might have received by the marriage, and which has passed to the assignee in bankruptcy; and even there, the complainants have neglected to go for their share of it. Upon the whole, I think the decree of the vice chancellor, and the affirmance.of it by the chancellor, were erroneous, that it should be reversed, and the complainants’ bill be dismissed with costs.

Ordered accordingly.


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    Mary Martin, by Joseph Dean her next friend, appellant, vs. Norris L. Martin, respondent.

    Where real estate was purchased and paid for in part with the money or funds of the husband, and with his assent the conveyance was taken to a trustee who simultaneously gave a mortgage on the estate for the residue of the purchase money, and also with the husband’s assent executed a declaration of trust to the effect that the premises were held to the sole and separate use of the wife, subject to the mortgage; held, the rights of creditors not being in question, that the decía-. ration of trust was valid and binding upon the husband, and that the husband had no interest in such estate.
    Where real estate of a wife which is held subject to the marital rights of her husband is sold, the proceeds of such sale, being money or personal property, belong to the husband, subject only to the equitable right of the wife to a support therefrom; and equity will not interpose in such a case in her favor, where suitable provision is otherwise made for her, or where she is living in a state of unjustifiable separation from her husband.
    Accordingly, where the wife owned a dower interest in four-sixths of certain real estate of which her former husband died seized, and owned in fee the remaining two-sixths, and the husband and wife united "in a sale, and out of the proceeds of such sale the sum of $3000 was paid, without the husband’s assent, upon a mortgage which encumbered the wife’s separate estate; held, that the husband had a claim upon such separate estate to that extent.
    But another sum of $2000 out of such proceeds appearing to have been paid upon the same mortgage with the husband’s unqualified assent; held, that such payment was a valid appropriation of that sum to the wife’s separate use, and that in respect to it the husband had no claim upon the separate estate.
    Appeal from chancery. The bill in this cause was filed before the vice chancellor of the first .circuit, by Mary Marlin against her husband Norris L. Martin, and Samuel Richards, her trustee. The assistant vice chancellor of that circuit, before whom the cause was heard on pleadings and proofs, made a decree which was modified by the chancellor on appeal to him. By one of the provisions of the decree as so modified, the husband was declared to have a lien upon the real estate which was the subject of the controversy, to the'amount of §5000 and interest thereon, which had been paid in two sums of §2000 and §3000, upon a mortgage encumbering the premises. Mrs Martin appealed to this court. The material ."acts are stated in the opinion of the court as delivered by Wright, J.

      D. D. Field, for the appellant.

      H. B. Duryea, for the respondent.
   Wright, J.

The bill in this cause was filed in the court of chancery to restrain the respondent from controlling or interfering in any way, with certain real estate alleged to be held in trust by one Samuel Richards, as the sole and exclusive property of Mrs. Martin, the appellant; also, to remove Richards from such trust, and to appoint a new trustee in bis place under the sanction and authority of that court; with the further prayer that, in the mean time, a receiver of the rents, issues and profits of such real estate might be appointed, and such rents, issues and profits appropriated and paid to the now appellant. Richards was Originally made a party defendant to the suit.

The case is one exclusively between husband and wife; for, although it is apparent from the evidence, that at the time of the purchase of the property which is the subject of controversy, and subsequently, the respondent was insolvent, no question affecting the.rights of creditors arises. There are two principal and leading questions in' the case. 1st. Is the subject matter of the controversy the separate and exclusive property of the appellant? 2d. What are the rights of the parties in the property arising from transactions subsequent to the creation of the alleged trust? When the bill was filed the appellant had left her husband, and was living separate from him ; but the proof fails, although an apparently strenuous effort was made on that point, to establish such a case of cruel treatment by the husband, as, for that reason, to justify the separation, and to call for the particular interposition of the court of,chancery in the appellant’s behalf. Conduct, it is true, was shown, inconsistent with good manners or an affectionate regard for the feel mgs of a wife; but there was no proof of violence, or other manifestations of cruelty, rendering it unsafe for her to cohabit with him. The evidence fell short of what courts of equity have regarded as an excuse for a wife leaving her husband in disregard of her marriage vows.' Still,' it may be remarked, that although living apart from the respondent, no allegation was set up of unchasteness or immorality on the part of the appellant ; nor any attempt made.lo impeach, the purity of her character and morals.

The evidence shows that on the 9th of December, 1829, pursuant to an agreement fully understood by the parties to this suit, John Haggerty and wife conveyed the premises in question (being a farm on Long Island) to Samuel Richards. Mr. Haggerty testifies that both the parties (Mr. and Mrs. Marlin) conducted, the negotiation with him for the purchase of the farm, and he understood from both of them that it was purchased for her exclusive use and benefit, with her means, and that she might have a place as her home from which she might not be disturbed. The purchase money agreed to be paid was twelve thousand dollars. Of this sum, three thousand dollars was paid at the execution of the deed, by the transfer to and acceptance by Haggerty of a mortgage for that amount held by the respou dent on certain Brooklyn lots; and the balance was secured by bond and mortgage of Richards upon the premises. Whether this sum of three thousand dollars was the proceeds of the property of the wife or the husband appears to have been made a question in the court below; but it was scarcely alluded to in the argument before us; and it is quite clear that in either view the rights of the parties would not be changed. The mortgage was transferred, and the payment made, by the act •and consent of the husband ; and if it were the absolute property of the husband, so long as creditors did not interfere, he had the right to settle it upon his wife for her sole and separate use.

Simultaneously with the execution of the deed from Haggerty to Richards, a declaration of trust was executed .by Richaids. This instrument recited that Richards, at the request of the appellant, had consented to become trustee of the lands conveyed to him by Haggerty, and which conveyance from Haggerty was to be contemporaneous with it; that three thousand dollars of the trust moneys had been appropriated for the payment of so much of the purchase money of the land, and the residue, amounting to nine thousand dollars, was to be secured by bond and mortgage; that the appellant had required.that a déclaralion of trust should be executed, and that the instrument had been drawn for such purpose. The trusts declared by the instrument were, 1st. To indemnify Richards, his heirs, executors and administrators, from and against the bond and mortgage executed by him for securing the balance of the purchase money, and all payments of principal and interest thereon; for the purpose of which indemnity, Richards, his heirs, executors, administrators and assigns, were empowered to sell the premises or any part thereof, or mortgage or demise the same, as he or they should think fit, and apply the proceeds thereof to such indemnity. 2d. Being kept indemnified, that Richards, his heirs and assigns, at the election, from time to time, of Mrs. Martin, and during her lifetime, should permit her and her family to occupy the premises, or receive the rents, issues and profits thereof, to her sole and separate use, to be paid on her sole and separate receipt, and to be accounted to her solely and separately, and to be free from the debts, contracts, and interference of her husband, present and future. 3d. Being indemnified as aforesaid, Richards, his heirs and assigns, should, upon the request in writing of Mrs. Martin, witnessed by one witness, convey unto such person or persons, and for such prices, and upon such terms as she should think fit, all and singular such premises, and give receipts and acquittances for the purchase money thereof, which should fully discharge the purchaser or purchasers for the price expressed therein to be paid by them. 4th, That on the death of Mrs. Martin, Richards, his heirs, executors and assigns, being indemnified, should convey the premises unto such person or persons, in such estates, and upon such uses and trusts, as Mrs. Martin should by writing in the nature of a will appoint, declare and direct; and in case no such instrument should exist at the time of her decease, then to convey the premises unto the heirs at law of Mrs. Martin, ir. the same shares, proportions, and estates, as if she had survived her husband.

About the time the purchase xvas made, and the declaration of trust given, the appellant went into the occupation of the premises, and, the proof shows, continued to principally manage and control them until 1838. The respondent, xvho appears to have been pursuing no regular employment or business, and who was evidently without means, except wh-1 ''hos'I'i hr» derived from his xvife’s property, also rc.jskd nn ¡!T ¡ mises, and although he superintended .To impiuvCineiu, of them, xvhilst" she continued in their o. eusrnioiy Lc muiuinly,treated them as the exclusive property of his xviiL t.-dring receipts for labor performed thereon in her name.; and consulting her in relation to renting a portion of them. There can be no doubt, also, from the admissions of the respondent in his answer, and the evidence, that he unde . -d fully the purport, contents and . effect of the declaration of«m He was in no respect deceived, as he xxras the principal ae.ur in obtaining it. His object clearly then was, as lie'stated to Haggerty, to secure a home for his wife, by her mvuin:', (a great deal of which had already been wasted,) and thereby secure one for himself. The declaration of trust was hi his hand-xvriting, and he presented it to Richards for ex . ion It was executed and ackntixvledged by Richards, and! delivered to the respondent, not conditionally, or as an escroxxr, but absolutely for the use of the xvife, in furtherance of the original design of the parties as stated to Haggerty. This was an effectual delivery to vest in Mrs. Martin the rights declared by the instrument, and to divest the respondent of any able title in the property. It is alleged in the answer, that the declaration of trust xvas, without the respondent’s consent or knoxvledge, placed upon record; but whether it was or not, could not alter or affect the rights of Mrs. Martin acquired thereunder. It became operative from its .execution by Richards and delivery to the husband for her use.

There is, therefore, no difficulty in determining the first question presented by the case. The subject matter of the controversy is, so far as the respondent is concerned, the sole and separate property of the appellant, and, as against him, she is entitled to the sole and exclusive use, and the rents, issues and profits thereof. Being indemnified against the principal and interest due or to become due on the mortgage given by him, it was the duty of. the trustee to allow her to occupy the premises, .or to receive exclusively the rents, issues and profits thereof, free from the debts, contracts or interference of her husband. The husband had no interest therein; and it is obvious that he did not design to have any that might be reached by creditors. Indeed, on the argument the ground was in effect abandoned that as between the parties to this litigation the ii-usj; was not a valid one, and the farm, prior to the payment of the sum nf five thousand dollars on the mortgage given by Richards, the sole and separate property of the wife; for the entire argument of thé counsel for the respondent related to his client’s equitable rights hi the property, growing out of transactions subsequent to the creation of the trust, and some three years after the appellant had entered into the- use and occupation of the premises under it.

2. Do transactions subsequent to the creation of the trust give to the respondents any equitable rights in the*-,property ? This question is more difficult of solution than the first; and this difficulty mainly arises from the. loose, imperfect and unsatisfactory manner in which the facts of the case are presented. We have a massive volume before us, the minutest proportion of which bears upon the question. Certain facts, however, are proved, and some others are admitted, that may enable us to arrive at a pretty satisfactory conclusion. It appears that inx May, 1832, more than two years after the purchase of the property and the creation of the trust, and whilst Mr. and Mrs. Martin were living thereon, and paying semi-annually the interest on the mortgage of $9000 given by Richards, and apparently using and enjoying the property without any control or intervention of the trustee, Edward G. Miller, a son of the appellant, paid to Haggerty, in two several payments, one oí $2000 and the other of $3000, the sum of $5000, in part pay meat of the bond and mortgage of $9000 which Haggerty held on the property. It was admitted on the argument that this sum of $5000 was realized from the sale of the appellant’s interest in certain real estate in the city of New-York, formerly belonging to a deceased husband, which interest consisted of a dower right in four-sixths thereof, and a fee in the remaining two-sixths. That the respondent knew of the sale of this New-York property'to Edward G. Miller, and that he made no demand on the latter for the proceeds prior or subsequent to the payment in 1832 to Haggerty, and that he knew of the payment about the time it was made, is quite apparent; for he was a party with his wife to a deed executed to Miller in 1830, for a part of the property, and from.the fact of his ordinarily paying the interest as it fell due on the Haggerty mortgage, (which interest was payable semi-annually,) he must have known that the mortgage was reduced to $400Q, within six months at least after the payment had been made. In this interest of the appellant in the New-York property, the respondent Martin had a life estate subject to the equity of the wife for a sufficient settlement out of the dower fund, provided such settlement had not been made under the trust deed, or in some other way. At the time of the sale and the payment of this sum of $5000 to Haggerty, the respondent was in law entitled to receive the income of such sum, and had he brought his action at law to maintain his marital rights, a court of chancery would not have interfered, unless he had deserted his wife, or neglected to provide for her, and the income of the dower fund was absolutely required for her maintenance and support. It is clear, then, that the proceeds of the interest of the appellant in the New-York property, could not be legally used to proportionably discharge an incumbrance on the wife’s separate property, and thus divest the respondent of all interest therein without his acquiescence, or some agreement on his part to that effect. That he might acquiesce in, or agree to an appropriation which forever afterwards would estop him from setting up any claim growing out of his marital rights, is quite manifest.

The counsel for the appellant contends that the respondent agreed to the appropriation made by Miller of the $500.0 in part liquidation of the Haggerty mortgage; or, at least, that he acquiesced in such appropriation subsequently to its being made, which was equivalent to a previous agreement. His conduct certainly was unlike that of a person who contemplated setting up a claim to any part of the proceeds of the New-York property coming through his wife. He knew of the sale, and that the proceeds were in the hands of Miller, yet he suffered them to remain there, making no claim by virtue of his marital rights. He certainly knew of the appropriation shortly after it had been made, if he did not at the time, yet he made no objection to it. He never called on Miller for any explanation of the matter. He made no claim to the land on account of the payment. In 1834, two years after the payment, and when .he must have known the precise state which the trust property was in, he accepted a deed of appointment from his wife of an estate for life in the premises, to commence at her death, in which deed the.trusts showing that the property was held for her sole and separate use, were recited. Neither at the time this appointment was accepted, nor in his answer, did he make any claim to the proceeds of the appellant’s interest in the New-York property, nor pretend that it was not agreed to be his wife’s, and to be considered as a part of her separate estate. But it is urged, on the other hand, that he made no claim, or set on foot any proceedings to assert his rights in. the estate derived from his wife, for the reason that he was in common with her, in the use and enjoyment of the farm on Long Island, and was always in the expectation of obtaining from her an appointment that would secure to him a jointure in it; and that if he is now compelled to relinquish the use and enjoyment of the premises,' and be disappointed, in his expectations of obtaining an interest therein, his acts ought not to be regarded as an acquiescence in the appropriation for such purposes. I think there is force in this argument in respect to $3000, parcel of the sum realized from the appellant’s real estate in Te city of New-York; but none as to the additional $2000 of that sum. The respondent admits in his answer, that at the time of the purchase of the Long Island farm, it was contemplated and agreed on hie part, that the first payment on the Haggerty mortgage, which was the sum of $2000, to become due in two years from the date of the purchase, should be made out of the proceeds of the appellant’s -interest in the New-York property, and that he so informed Richards at the time of the execution of the declaration of trust. He had therefore agreed, prior to the execution of the trust deed, which was to give to his wife the separate,estate, that $2000 of the proceeds of her property should go to proportionably discharge the purchase money, and with this agreement fully understood, and in view of its effectual consummation, the declaration of trust was executed and delivered to the respondent. I find it nowhere expressly alleged or set up in the answer, that this agreement was a conditional one, only to operate in the event of the respondent’s obtaining an interest in the premises; and his subsequent acquiescence in the payment of the sum contemplated by, the agreement, must be considered as an indication of an intention not to avoid it. About the period that the sum of $2000 fell due on the Haggerty mortgage, it was paid, and it is to be inferred from the respondent’s admissions and the facts proved in the case, with his assent. There would be no equity, therefore, as against the appellant, to revive a right in the respondent’s behalf that he evidently assented to part with absolutely. But with regard to the further amount of $3000 paid on the Haggerty mortgage before it fell due, there is no admission of the respondent of an assent or agreement on his-part that the payment should be made from funds realized by a sale of the appellant’s property. Indeed, it is expressly alleged in the answer of Marlin, t-hat the balance of the mortgage, after the first payment of $2000 had been made, was to be paid by the respondent himself out of certain moneys expected to be received by him from the corporation of the city of Brooklyn. It is true that there was an apparent acquiescence of more than six years in the specific appropriation of the money by Miller; but this was, as has been urged, whilst the respondent was in the enjoyment of the prop erty, and whilst he hoped and expected, by the act of the wife, to obtain a legal interest therein. Had the appellant immediately on the execution of the trust deed, strictly as'serted her rights thereunder as against the respondent, arid the latter had, for more than six years, quietly acquiesced in the appropriation of the $3000 for the discharge of the mortgage, there would have been good reason for inferring an assent on his part to the appropriation for the absolute benefit of the wife; but I cannot arrive at the conclusion under the facts of this case, that the husband would at any time have consented that his whole marital interest in his wife’s real estate in New-York, should go to the discharge of an incumbrance on her separate property, whilst he was excluded from any enjoyment thereof, or any expectation of an interest therein. To my mind the facts of the case do not present such a case of' acquiescence in the appropriation of the $3000, as to exclude .the respondent from setting up any claim to an interest in that sum in the event of giving full effect to the declaration of trust.

The appellant now asks that effect may be given to that declaration; that the respondent may be restrained from interfering with the property ; and the rents, issues and profits thereof may be appropriated and paid to her exclusively. The $3000 has gone into the land; it is but just and equitable, therefore, that he should have a lien thereon to that extent, so as to entitle him to receive such sum, subject to the balance due upon the mortgage to Haggerty, .which should be first paid. I should desire much to save for the appellant the whole of the interest in the Long Island fatm, after the discharge of the mortgage. It appears that it is all that is left to her of a considerable fortune brought to a husband who is now insolvent. But it cannot be done consistently with a due regard for the rights of the respondent.

Several minor questions, affecting to some extent the rights of the respective parties, were raised during the progress of the case; but,coinciding fully with the views of the chancellor respecting them, I have intentionally refrained from their discussion.

I am of the opinion that the decree of the chancellor should be modified so as to strike therefrom the words “ five thousand dollars,” wherever they occur- in such decree, and insert in lieu thereof the words “three thousand dollars.”

Decree accordingly.


author: Gardiner, J.

text:
    Harvey vs. Olmsted.
    Where, by a will made prior to the revised statutes, lands are devised in general terms without words of limitation or inheritance, the devisee takes a 'life estate only.
    And such introductory words as these—“ I order and direct my real and personal estate to be divided and distributed as follows,” do not enlarge the devise into a fee.
    A charge, to carry a fee by implication, where the devise is without words of limitation, must he upon the person of the devisee in respect to the lands devised. Where this exists, it gives to the devise the character of a purchase.
    A testator, by his will made in 1821, gave a part of his real estate to his wife during her widowhood, and after her decease to two of his children. To his son Nathaniel he gave two parcels, one designated in the will as the Powers lot, the other as the mountain lot. To another son he gave a legacy of $1000 to be paid out of his personal estate, if sufficient after paying debts and other legacies, but if not sufficient, then to be paid inland “ from the Powers lot, so called.” There were no words of inheritance in any part of the will. Introductory to all the devises and bequests were these words: “ I order and direct my real and personal estate to be divided and distributed as follows.” In the concluding part the testator declared, that in case any dispute should arise upon the will, the same should be referred to three men, tobe chosen for that purpose, who should “ declare their sense of the testator’s intentions, unfettered by law and the niceties of legal construction.” Held, that Nathaniel took only a life estate in the mountain lot.
    Ejectment, brought in the supreme court by Anna Olmsted against Asa Harvey, to recover an undivided fourth of fifty acres of land known as the mountain lot, situated in , the town of Austerlitz, county of Columbia. The cause was tried at the'Columbia circuit, before Whiting, circuit judge, in October, 1846, when a verdict was directed for the plaintiff subject to the opinion of the supreme court on a case, with leave tc turn the same into a bill of exceptions, containing the following facts:

      The plaintiff claimed as one of the children and heirs at law of Nathaniel Olmsted, -sen. The defendant claimed as the grantee of Nathaniel Olmsted; jun., who died in 1835, and who claimed the premises under the will of Nathaniel Olmsted, sen. The question was whether a fee or only a life estate in the premises passed by that will.
    Nathaniel Olmsted, sen. died in 1821, having first made his last will and testament, which, after directing the speedy payment of the testator’s debts, proceeded as follows :
    “ Second. I order and direct that my real and personal estate be divided and distributed as hereinafter described, which is as follows, viz.: I give and bequeath unto my beloved wife, Sylvia Olmsted, the use and occupancy of the home farm (so called) containing about one hundred acres, with the buildings thereon, as also she, the said Sylvia Olmsted, to have the use and occupancy of the Bartlett lot (so called) which described lands as aforesaid, are to remain in the possession of the said Sylvia Olmsted, so long as she remains my widow, and no longer. But at the decease of the said Sylvia Olmsted, the above described lands and buildings, are to be equally divided between my sons. Nathaniel Olmsted, jun. and Joseph Washburn Olmsted. I give and bequeath to my son, Nathaniel Olmsted, jun. the lot of land, that I purchased of Jacob Powers, containing.fifty acres or more, and he the said Nathaniel to come into possession of the same immediately after my decease. I also give and bequeath unto my son, Nathaniel Olmsted, jun. the mountain lot of land (so called,) containing about fifty acres, and the said Nathaniel to come into possession of the same immediately after-my decease.

    “I give and bequeath to my son, Joseph Washburn Olmsted, one thousand dollars to be paid to him when he arrives to the age of twenty-one years; the said thousand dollars to be paid out of my personal estate should there be a sufficiency left after the sums bequeathed hereafter to Anna Olmsted and Mary Olmsted. I give and bequeath to my daughter Anna Olmsted, two hundred dollars to be paid to her out of my personal property within one year from my decease.

      “ I give and bequeath to my daughter Mary Olmsted, three hundred dollars to be paid out of my personal property in one year-from my decease. I order and direct, that after my decease, and legal estimation shall be made of personal estate, if said personal estate (after deducting all my "debts and the legacies to Anna Olmsted and Mary Olmsted as aforesaid,) shall not amount to the sum of one thousand dollars, being the sum by me bequeathed to Joseph Washburn Olmsted ; then in that case the said Joseph Washburn Olmstéd, shall be paid in lands from the Powers lot so called, to be appraised by my executors hereinafter named, so as to make to him the sum of one thousand dollars.
    “ And I do most sincerely and solemnly enjoin it upon my executors, hereinafter named, to see and take care that this my will be religiously fulfilled in all respects according to the true intent and meaning thereof. But in case any dispute should arise respecting any gift, bequest, matter or thing contained in this instrument, then in that case, the same shall be referred to three impartial and intelligent men of the town of Canaan, known for their honesty and integrity, each party choosing one, and those two choosing a third, which three men thus chosen shall,'unfettered by law and the niceties of legal construction, declare their sense of the testator’s intentions, and their decision to be binding on the parties, the same as would be in any court of record in the United States.”
    The personal estate of the testator, after paying his debts and the legacies to Anna and Mary Olmsted, was not sufficient to pay the legacy of $1000 to Joseph Washburn Olmsted, there being a deficiency of $609,69, which therefore according to the will became payable out of the fifty acres called in the will the Powers lot. Nathaniel Olmsted, jun. conveyed the mountain lot, the premises in question, to the defendant in 1826.
    The supreme court gave judgment for the plaintiff, (see 1 Barb. Sup. Court Rep. 102,) and the defendant, having had a bill of exceptions duly signed and sealed, brings error to this court.

      K. Miller, for the plaintiff in error.
    I. The testator having expressly ordered and directed that his real and personal estate should be divided and distributed as in and by his will waS directed, passed a fee to the appellant’s grantor in the premises. (Jackson v. Merrill, 6 John. 191; Carr v. Jenner ett, 2 McCord, 66 ; Morrison v. Semple, 6 Binn. 94; Hungerford v. Anderson, 4 Day, 368; Den, ex dem. Moor, v. Mellen, 5 T. R. 562; Watson v. Powell, 3 Call, 306; Brown v. Wood, 17 Mass. R. 72; Fox v. Phelps, 20 Wend. 445.)
    II. There are no words of perpetuity used in any part of the will, and no devise of any reversionary interest or estate. As the testator made no devise of any reversionary interest in any of the lands, it is evident he supposed he was devising all his real estate. (18 Wend. 207, per Chancellor.)
    . III. The devise to Nathaniel Olmsted, jun. and Joseph W. Olmsted, of the home farm and Bartlett lot after the decease of the widow, (who had a qualified life estate therein,) being a remainder interest, shows clearly that the testator intended that they should take a-fee estate. (Butler and wife v. Little, 3 Maine R. 239; 2 Prec. of Wills, 291, 2; 6 Bac. Abr. 16, C. Phil. ed. of 1846; Oatis v. Cook, 3 Burr. 1688 ; 3 Bing. 3, 13 ; 1 Ves. sen. 491; Gall v. Esdaile, 8 Bing. 323; Spraker v. Van Alstyne, 18 Wend. 204.)
    IV. The devises to Nathaniel Olmsted, jun. of the Powers and mountain lots passed a fee, as the Powers lot is expressly charged with the deficiency that should or might exist to pay the legacy of $1000 to Joseph, after the application of his personal estate to his debts and other legacies; (which deficiency upon settlement was $609,69.) (Spraker v. Van Alstyne, 18 Wend. 200; per Chancellor, 204; per Senator Dickinson, 209; Cook and others v. Holmes, and wife, 11 Mass. R. 528 ; 8 id. 3; 1 Munf. 589; 6 Binn. 94.) The charge of the $1000 legacy to Joseph was a direct charge upon the devisee of the estate specifically devised to him, so as to create a fee by implication. (Doe v. Richards, 3 T. R. 356; Denn, ex dem. Moor, v. Mellen, 5 id. 562; Doe v. Allen, 8 id. 499; Jackson v. Bull, 10 John. 153 ; Heard v. Horton, 1 Denio, 166.)
    V. The estate given to Joseph, and which the executors were contingently authorized to set off and convey to him in satisfaction of his legacy, must be deemed to be a fee, and which raises an implication that the testator intended that Nathaniel should have the same estate. (Cook, &c. v. Holmes. 11 Mass. R. 528.)
    VI. The whole tenor, and especially the concluding clauses of the will, show that the testator intended that a fee estate should pass to his two sons, and that he did not intend that in the disposition of his property his will or intention should be fettered by the niceties or technicalities of legal construction.

      H. Hageboom, for the defendant in error.
    I. The devise of the mountain lot, (which is the lot in question,) is wholly without words of inheritance, and is not aided by, or referred to in any other part of the will. Upon the well established principles of the common law, therefore, prevailing at the testator’s death, the devise conferred simply a life estate. (Dean v. Gaskin, Cowp. Rep. 657; Jackson v. Wells, 9 John. 222; Jackson v. Embler, 14 id. 198; Ferris v. Smith, 17 id. 221.)
    II. The introductory words in the will by which the testator orders and directs his real and personal estate to be divided and distributed as thereafter directed, do not necessarily convey a fee. (Doe v. Buckner, 6 T. R. 610; Doe v. Wright, 8 id. 64; Doe v. Allen, id. 497; Denn v. Gaskin, Cowp. 657 ; Hogan v. Jackson, id. 299; Wright v. Russell, id. 661; Loveacres v. Blight, id. 352; Roe v. Vernon, 5 East, 51; Goodright v. Barron, 11 id. 220; Jackson v. Harris, 8 John. 141; Jackson v. Wells, 9 id. 222 ; Barheydt v. Barheydt, 20 Wend. 576 ; Wheaton v. Andross, 23 id. 452; 2 Taylor’s Prec. of Wills, 292.) Again, the phraseology expressly refers to the division afterwards spoken of, and is therefore limited by the subsequent words.
    III. A fee by implication is not to be deduced from the estates given to the two sons being limited upon a previous life estate to the wife. (Hay v. Earl of Coventry, 3 T. R. 83 ; Hackley v. Mawbry, 3 B. C. C. 82; Compton v. Compton, 9 East, 267; Doe v. Clark, 5 Bos. & Pull. 343; Doe v. Wright, 8 T. R. 64; Doe v. Clark, 2 N. R. 343; Ferris v. Smith, 17 John.
      221; 2 Powell on Devises, 377.) Successive life estates were lawful and were frequently created upon the same property, when this will took effect. Again, this implication, if ever allowable, does not apply to the mountain lot.
    IV. A fee by implication is negatived by the description of the premises, or terms employed to designate them. The terms are “ the mountain lot of land, so called,” “ the home farm, so called“ the Bartlett lot, so called,” &c. conveying the idea that they were intended only to designate the premises, not the nature or extent of the testator’s interest therein. (Morrison v. Semplen, Binney, 97; Spraker v. Van Alstyne, 13 Wend. 578.)
    V. The words “to be equally divided between them,” afford no just inference of an intent to pass a fee. (Jackson v. Bull, 10 John. 148; Jackson v. Luqueer, 5 Cowen, 221; Spraker v. Van Alstyne, 13 Wend. 582.) The use of these words is entirely consistent with the division of life estates; they refer probably to a territorial division. They do not go to the limitation of the estate. (Jackson v. Luqueer, 5 Cowen, 221.) They do not affect the mountain lot.
    VI. The charge upon the Powers lot does not raise a fee by implication. To raise a fee by implication, the- legacy must be charged upon the person of the devisee. (Jackson v. Bull, 10 John. 143 ; Jackson v. Martin, 18 id. 31; Jackson v. Harris, 8 id. 141; Spraker v. Spraker, 18 Wend. 200 ; Barheydt v. Barheydt, 20 id. 576 ; Wheaton v. Andross, 23 id. 452; Doe v. Clark, 5 Bos. & Pull. 343; Fox v. Phelps, 17 Wend. 393; Burlingham v. Belding, 21 id. 463.) When the charge or annuity is to be paid out of the lands merely without saying by whom, One, devisee’s estate will not be enlarged. (8 East, 141; 8 Petersd. 165.) To raise a fee' by implication, the charge must also be absolute and not contingent. (Merson v. Blackmore, 2 Atk. 341; Doe v. Allen, 8 T. R. 497; Jackson v. Harris, 8 John. 141; Spraker v. Spraker, 18 Wend. 200; Spra ker v. Van Alstyne, 13 id. 578; Denn v. Mellor, 5 T. R. 558 ; Jackson v. Bull, 10 John. 148.) The legacy to Joseph is not necessarily payable of the estate, devised to Nathaniel, jun. It may be paid out of the land from the Powers lot without touching the life estate of Nathaniel therein. (Barheydt v. Barheydt, 20 Wend. 576.) Indeed the payment of the deficiency to Nathaniel was not necessarily in land at all; it may properly be by the avails of the sale. (Jackson v. Burr, 9 John. 104.) The implication of a fee, (if there be one,), is confined to the Powers lot. It does not extend to the mountain lot. The provisions of the will confine it to the Powers lot; and the books are full of cases showing the impropriety of thus raising an implication upon an implication. (Spraker v. Spraker, 18 Wend. 200; Spraker v. Van Alstyne, 13 id. 578.)
    VII. The absence of words of perpetuity or of the devise of any reversionary interest, furnish no sound or legitimate legal presumption of an intent to devise the whole estate. (Wheaton v. Andross, 23 Wend. 452.) To indulge such presumption would.be to subvert the unbroken line of English and American decisions, which allow only a life estate, in the absence of words of perpetuity.
   Gardiner, J.

According to the terms of the devise, Nathaniel Olmsted, sen., took a life estate only in the mountain lot. Such was the established construction, at the making of this will, of a devise of real estate containing no words of limitation. (6 Term Rep. 610; 2 Preston on Estates, 188; 20 Wend. 580.) It is a familiar proposition that a testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense. (Wigram on Wills, Law Lib. vol. 2, p. 11.) The words of this devise, as we have said, import an intent of the testator to grant a life estate only in the premises in question, but it is claimed that the context enlarges the estate to a fee, by showing that such must have been the intention of the testator.

We are referred to the second clause by which the testator orders and directs that his real and personal estate be divided and distributed as follows.” This clause is obviously in trod uctory to the actual distribution afterwards made by the deceden:. It indicates an intention to dispose of his property, real and personal. But this is not enough. There must be an intent and words of disposition. Both must concur in every valid devise. (Saunderson v. Dobson, decided in 1847, in Exch. Law Jour. 249 ; Doe v. Earle, id. 242.) The clause cannot embrace all the subsequent devises of real property, because a portion is devised to the wife of the testator during her widowhood.

Nor are the introductory words necessarily connected with the disposition of other portions of his real estate to his sons. The estate of the testator in his’real property was as much the subject of division as the lands themselves. If he had given a particular tract or farm to one of his sons, and made no disposition of the residue, it would not be pretended that we could extend the gift to other lands, however emphatically the testator should announce his intention to settle all his property by his will. This remark is applicable to the devise in question.

The testator has used language which,, according to an unbroken series of decisions, import an intent to give an estate for life. Such is his disposition. To use the language of the introductory clause, he has “divided and distributed” such an interest, and no other, to each of his sons. If the residue of his estate is undisposed of, it presents the ordinary case of a general intention not executed. • But it furnishes no reason for departing from the language of the testator, nor any authority to this court in his place to distribute his property for him. (Barheydt v. Barheydt, 20 Wend. 580, 581.)

There is no foundation for saying that Nathaniel took a fee in consequence of the legacy of $1000 being a charge upon him in respect to the lands devised to him by the testator. A charge to create a fee by implication, must be upon the person of the devisee in respect of the lands devised. Where it exists, it takes from the devise the character of a gift, and turns it into a purchase. The mode of compensation prescribed by the testator, may be by the payment of debts or legacies, or by the relinruishment of a right. To guard the devisee under such circumstances against loss, according to the presumed intent of the testator, the estate is turned into a fee. (Spraker v. Van Alstyne, 18 Wend. 205, and cases cited; Jackson v. Ball, 10 John. 143; 20 Wend. 581.) In this case the legacy to Joseph W. Olmsted is made a charge upon the personal estate, and that failing, upon the Powers lot. At most the charge upon this land is contingent. There is no obligation imposed upon Nathaniel in respect of the devise to him of the mountain lot; on the contrary, in default of personal property, the legacy is to be paid in land other than the premises in question, to be appraised by the executors. (20 Wend. 582, and cases cited ; 8 John. R. 142; 18 Wend. 205, and cases cited.) We think, therefore, that the decision of the supreme court should be affirmed.

Judgment affirmed.


author: Bronson, J.

text:
    Wendell vs. Crandall.
    A remainder in fee limited by will to the eldest son of the first taker to whom an intermediate life estate is given, is contingent until the birth of such son; but on the happening of that event, before the termination of the life estate it becomes a vested estate in remainder.
    And where an estate tail in remainder was so limited, and became vested by the birth of a son prior to the act of 1786, abolishing entails; held, that by the operation of that act, the estate tail in remainder was converted into a fee simple in remainder, which, on the death of the remainderman without issue in 1809, and before the termination of the intermediate life estate, descended to his father as his heir at law.
    One who has a vested remainder in fee simple, expectant on the determination of a present freehold estate, has such a seisin in law, where the estate was acquired by purchase, as will constitute him a stirps or stock of descent.
    On error from the supreme court, where the action was ejectment, and the verdict and judgment were in favor of the lefendant. For a full statement of the case, together with the arguments of the counsel and the opinion of the supreme court, see the report of the case in that court, 2 Denlo, 9.

      S. Stevens, for the .plaintiff in error.

      D. Buel, Jr. J. Pierson, for the defendant in error.
   Bronson, J.

This case, and the case of Van Rensselaer v. Poucher, which is also before us, involving the same question, have been so fully and ably examined by the learned judge who delivered the opinions of the supreme court, that I shall not go very fully into the discussion of the principle to be settled.

I shall assume, without however intending to intimate any opinion on the point, that the plaintiff is right in saying, that the trustees took the legal estate for the life of Mathias, the grandson of the testator; and that he had only an equitable life estate.

. It was not suggested, nor am I aware that the act to abolish entails, passed in 1782, can have any material influence upon the case, and I shall therefore leave it entirely out of view.

Dirk, the oldest s'on of Mathias the grandson of the testator, was born in 1783, and died in 1809 ; both events having happened while the life estate was running,' which did not terminate until 1825. On the birth of Dirk, his remainder, which was before contingent, became vested in interest, and he was seized of an estate tail in remainder. Although he neither had possession, nor the right to immediate possession, he had a fixed right of future enjoyment the moment the life estate should come to an end. Such was the state of the case at the time the act of 1786 was passed; and the question is, whether the act took effect upon an estate tail, under such circumstances, as well as upon an estate tail where the tenant in tail was seized in fact, or had actual possession. I think it did.

When the legislature was about to abrogate the right of primogeniture, and make other reforms in the law of descents, they found estates tail standing in the way of the new rules which they proposed to establish; and they began the work by abolishing those estates. They did not however annihilate the title to the property, but only changed the nature pr quality of the estate, so that it would go to the heirs general of the tenant in tail, instead of the particular heirs designated by the donor. This was, I think, the leading object which the legislature had in view, though the provision which they made served the further purpose of getting rid of the necessity for fines and recoveries as a means of docking the entail. The estate tail was turned into a fee simple. Then the tenant in tail, having by force of the statute become tenant in fee simple, and having acquired the estate by purchase, would constitute a new stock of descent, from whom, the lands might go according to the law of descents, instead of following the form of the gift in tail.

There was the same reason for attacking the estate tail when the tenant in tail was only seized in law, as there was when he was seized in fact; and there was no stronger reason against doing it in the one case, than there was in the other. And on looking at the statute it will be seen that the legislature did not deal with the subject by the halves, but made clean work of it. The title is “ an act to abolish; entails, to confirm conveyances by tenants in ' tail, to regulate descents,” &c.; and the first words of the first section are, “that all estates tail shall be, and are hereby abolished.” This sweeping declaration was made by men who well understood the force of language, and the nature of the subject with which they had to "deal; and it can indicate nothing less than the purpose of reaching all estates tail, without exception. They were acting in accordance with the spirit of the times; and there was no reason in the nature of things why they should not cover the whole ground. Whatever room for doubt there might have been about the true construction of the remaining part of the section, had it stood alone, that doubt must be removed by the language with which the section begins. That furnishes a key. to the intention of the framers of the law which cannot be mistaken. If we omit some words which are not material to the present inquiry, and look only at that branch of the section which relates to estates tail then existing, the provision is, “ that all estates tail shall be, and are hereby abolished; and that in all cases where any person now is seized in fee tail of any lands, tenements or here ditaments, such person shall be deemed to be seized of the same in fee simple absolute.” (3 R. S. App. 48.) The same broad language with which the section begins is continued through the clause. It is a provision concerning all estates tail,” and all cases” where a person is seized of such an estate; and I cannot doubt that the legislature intended to dispose of the whole subject. They meant to reach an estate tail in remainder, as well as- one in possession.

It is true that the statute speaks of a person seized of lands, tenements or hereditaments ; and, in general, seisin of lands means actual possession of them. But taken in their connection, the words evidently mean, seisin of an estate in lands. The legislature began by speaking of estates tail: that was the subject in hand: those estates were to be turned into estates of a different tenure or quality; and the lawmakers must be understood as speaking of the same thing in the latter part of the clause which they had mentioned at the first. As I read-the statute the provision is,'that all estates tail shall be abolished ; and where any person now is seized of an estate in fee tail in any lands, &c. such person shall be deemed to be seized of the same, (to wit, an estate in the lands) in fee simple. The third section,' which regulates descents, like the first, which abolishes entails, speaks of a person seized of lands, tenements or hereditaments; and I think the word “ seized ” was used in the same sense in both sections. One who has a vested remainder in fee simple, expectant on the determination of a present freehold estate, has such a seizin in law, when the estate was acquired by purchase, as will constitute him a stirps or stock of descent under the third section; and the person who has a vested remainder in fee tail, acquired in - the same way, has such a seizin in law as brings his case within, the operation of the first section. - His remainder in fee tail is turned into a remainder in fee simple. The first section brings the case under the influence of the third; and the estate no longer follows the will of the donor, but is governed by the general law of descents.

Some stress has been laid on the word “ fee.” As Dirk was not entitled to the possession so long as the life estate continued, and consequently had not the entire interest, it is said that he had no fee, and that his interest could not be turned into a fee simple. This argument assumes that the legislature employed the words fee tail” and fee simple” to measure the quantum of estate: .but I think the words were used to mark the kind or quality, rather than the quantity of the estate. The word “ fee” was originally used in contradistinction to allodium, and signified that which was held of another, on condition of rendering him service. It related to the quality, and not the quantity of the estate. And although the word is now generally employed to express the quantum of estate, that is not its only meaning. In framing this law, the legislature was not concerned about the right to present .enjoyment, but was regulating the course which the estate should take in future. The purpose was, to impress a new character or quality upon the estate, so that it would no longer follow the will of the donor, but the law of descents: and to that end, the estate in fee tail was converted into an estate in fee simple.

If this had been such a case as was put by way of argument by the counsel for the plaintiff in error in Van Rensselaer v. Poucher, to wit, if Dirk had been old enough for that purpose, and had died, leaving a son, before the act was passed, then, as the son would take by descent, he would not have such a seisin as would enable him to transmit the estate by descent, before he had exercised some act of ownership over it which the law would regard as equivalent to actual seizin; and it may be that his estate tail would not have changed its character until the determination of the life estate. Assuming such to be the law, it only proves that there might by possibility have been a v,ase, though the thing was improbable, where the statute would not have had an immediate effect upon the estate tail. It proves nothing against giving full scope to the broad language and obvious policy of the statute, so far as it can be done consistently with the rules of law ; and it may be done in this case. Dirk took the estate per formam doni from the testator, and not by descent from his father Mathias. He took as a purchaser, and had a sufficient seizin to cast a descent. There was no goc/d reason why the statute should not have immediate operation upon his estate, as well as upon estates in possession; and I think his remainder in fee tail.was converted into a remainder in fee simple.

It is proper to add, that after this judgment had been rendered, and a majority of the judges of the supreme court had been changed, the question came again before that court in Van Rensselaer v. Poucher, and upon full consideration was again decided the same way. And a like decision was made in May, 1846, by the circuit court of the United States for the southern district of this state, in the case of Van Rensselaer v. Kearney and others. I have the authority of both the learned judges of that court for saying, that the decision of the supreme court was not treated as a controlling authority; but the question was examined and decided in conformity to the opinion which the judges of the circuit court entertained of the law applicable to the case.

The question is certainly not free from, difficulty; but upon the best consideration which I have been able to give to it, I am of opinion that the judgment of the supreme court is right; and such is the opinion of the court.

Judgment affirmed.