Ives, Trustee v. Harris

Ames, C. J. By the will of Mrs. "VYard, as set forth in the bill, her niece, Mrs. Eogers, took an equitable estate in fee simple in all her real estate ; and, according’ to the established rule, this disposition can no farther be affected by the codicil than is absolutely necessary to give it effect. 1 Jarman on Wills, 160-173, and cases cited. The codicil, so far from limiting the estate of the equitable tenant in fee and the powers which such an estate carries with it, after unnecessarily expressing that she should have the full enjoyment of the income, seems to have been designed solely to confer upon her a fuller power of disposing of it than the then state of the law permitted to a married woman over her separate estate, by introducing a power of appointment by will, notwithstanding coverture. We construe the words with which the codicil closes, — “ and in default of such direction or appointment, in trust for the heirs and assigns of the said Eliza B. Eogers forever,” — as a mere affirmation, from abundant caution, that in case of the non-exercise of this power, the destination given to the estate by the will was not to be disturbed. There is not only no clause in the will or codicil of Mrs. Ward, expressly or by implication, forbidding Mrs. Eogers, as equitable tenant in fee, to alienate, during coverture, her equitable estate, or to anticipate the income of the same, but both will and codicil express that her equitable estate extends not only to her and her heirs, but also to her assigns; a word of significance in the carefully chosen phraseology of such a trust. Without such restraint, it is not to be doubted, that v the equitable estate of a married woman, in real property settled to her sole and separate use, is as alienable by her, — she and her husband joining in a deed executed in solemn form under the statute, — as her legal estate in real property. Acton v. White, 1 Sim. & Stu. 429, 432; Medley v. Horton, 14 Sim. 222, 225; Adams’ Equity, 45; 2 Story’s Eq. Jurisp. §§ 974 1388-1394; and see Hill on Trustees, 421, and n. 1. If this be so by the general law, in application to a trust estate for the separate use of a married woman for life, much more must it prevail in a case like the present, in which the trust is declared, both by the will and codicil, to be not only *425 for her and her heirs — that* is, in fee — -but also for her “ assigns,” a word which, as we construe it, plainly declares that her trust estate was to be assignable. See Graftler v. Humpage, 1 Beav. 46, 51; Hames v. Hames, 2 Keen, 646, 651, 652. The case of Metcalf v. Cook, 2 R. I. Rep. 355, as a decision upon the particular case before the court is not designed to be disturbed; but if it is understood as laying down a different rule of laAV in relation to the alienability of the estates of married^ women settled to their separate use, from that generally prevalent in England and in this country, as specially required by the policy of Ehode Island, we desire to limit it, in this respect, to the case before the court, as distinguished from the remarks of the Judge Avho delivered the opinion, upon the general law relating to the subject of decision. It’ may be doubted, however, Avhether these remarks were designed to reach the particular - question noAv before the court; since the prefatory part of the opinion puts the decision upon “ the construction of the will of Elisha Waterman, the trusts thereby created,, and such rules of equity applicable to said trusts as may be deemed consistent with the established laws and policy of this State relative to the legal rights and liabilities of married women, and their power and control over their separate property and estate.” "The only established law and policy of this State, which could have been alluded to, are the law and policy of the statute of this State, so long existing, which authorizes a husband and Avife of full age, seized of real estate in her right, to convey the same by deed, which she, being examined privily and apart from her husband by the magistrate taking the acknowledgment, and having the deed shown and explained by him to her, acknowledges to be her voluntary act, and that she doth not wish to retract the same, and the law and policy of the more recent act, securing the property of married women to their sole and separate use, which provides, that the samé shall not be sold, leased, or conveyed by the husband unless by the same solemn form of conveyance. Rev. Stats. Ch. 136, §§ 4-10. Except so far as these statutes, which relate to the alienation of the corpus of the property of married women, regulate the conveyance of it, we are not aware of any law or policy prevalent here, which does not prevail in *426 every country of the common law; and these statutes, so far from restraining the right of a married woman to alienate her real property, even when settled to her sole and separate use, in-cases and in modes in which it is permitted by the general law, provide in such cases an easier mode of accomplishing- it, when the mode is not provided for by the deed • of settlement, than any known to the common law. It may be added, that the power of the trustee, named in the will, to sell portions of the trust estate for better investment, or to benefit by the proceeds the cestui que trust, Mrs. Rogers, is quite distinct, in purpose and extent, from her power to convert the same, as the unfettered equitable owner in fee thereof. Medley v. Horton, 14 Simons, 222, 225, 226. It cannot be construed to restrict her right to alienate in right of her equitable estate ; but as a part of the trust for her separate use, furnished a mode of alienation under the will for her benefit, free from the control of her husband, and not requiring his assent. Ibid. In this view of the case, it is unnecessary for us to decide the question, whether the power to sell, vested by the will in the late trustee, devolved upon his successor in the trust appointed by the court; since the equitable tenant in fee, by joining with her husband, who consented to the contract of sale, in a proper deed under the statute, can convey to the purchaser her beneficial interest in the purchased property, when he will be entitled to call upon the trustee to release pro tanto the legal interest. 2 Story’s Eq. Jurisp. §§ 977, 979. As all parties .to this amicable suit are desirous to execute the contract of sale, we have not looked into the conveyances tendered, for the special purpose of seeing if they conformed to the views above expressed. If they do not, they can easily be made to do so; and if the parties desire the decision, as well as the opinion, of the court, it would be advisable to amend the bill, by making Mr. and Mrs. Rogers parties plaintiffs to the same. This being done, in the absence of consent, our only decree can be, that the defendant must answer, over the demurrer, to the bill.