Kempton v. Morris L. Hallowell & Co.

Benning, J. By the Court. delivering the opinion. 'The object of the bill, is to subject the property mentioned in the deed of marriage settlement, to the payment of the notes of Kempton, endorsed by his wife to the complainants. The bill was demurred to for want of equity, and the demurrer was overruled. Ought the demurrer to have been overruled? In other words, was there equity in the bill ? If the deed created a property or estate in the wife, which did not, on marriage, pass to the husband, but remained the wife’s, and if, by endorsing his notes, she bound this property or estate, then there was equity in the bill. This may be assumed. And even if the deed created no such property or estate ill the wife, but yet created such estates in the husband, and ia the remainder-men, that the estate of the husband could not be reached at law without prejudice to the estate of the remainder-men, then, too, there was equity in the bill. This, also, may be assumed. First then, did the deed create any estate in the wife, which, on the marriage, did not pass to the husband, but remained the wife’s ? The words of the deed, bearing on this point, are these: “In trust, nevertheless, for the solé use, benefit, and be-hoof, of the said Anna Virginia, until the marriage shall take place; and from and immediately after the solemnization of said intended marriage, to and for the joint use and benefit of the said Anna Virginia and Edward S., during their joint lives, but not to be subject, in any manner, to the [56] debts, contracts, or engagements, of the said Edward S.; and to and for the use, benefit, and behoof, of the survivor of the said Anna Virginia Daughtry and Edward S.; and from and after the death of the'said survivor, then, in trust, that the said Bartholomew Busby, his executors, administrators, or assigns, will deliver the same to the issue of the said intended marriage, share and share alike, free from any trust, But if the said_Anna Virginia should die in the lifetime of the said Edward S., her said intended husband, without haying any issue living at the time of her death, then, in trust, that the said Bartholomew Busby, his executors, administrators, or assigns, will transfer and deliver over to the said Edward S., all the property and estate, herein contained and conveyed, free from any trust.” The property, from and after the marriage, was to be held for the “joint use” of the husband and wife, but so, as “ not to be subject, in any manner, to the debts, contracts, or engagements,” of the husband. The effect of the words “joint use,” was, to create an estate in the husband, and also an estate in the wife, and to make these two estates joint; the effect of the other words was to fix, in the wife, the estate created in her, and to prevent it from being, by the marriage, taken out of her, and passed into the husband. The whole effect of both sets of words, taken together, ivas to make her, and her husband, hold, as they would have held, if they had not been husband and wife. The words “not to be subject, in any manner, to the debts, contracts, or engagements,” of the husband, can operate .so far as the estate created in the wife is concerned; although it may be true, that they cannot opératelo far as the estate in the husband is concerned. And if they are to have any operation whatever, it must be an operation by which the estate in the wife, is to be hers and not his, although it may be, that she may have to hold it jointly with him, in other-words, it must be an operation by which, though she is to57 have, not an estate, in severalty, as contradistinguished from the estate in joint tenancy, yet, by -which she is to have an estate in severalty, as contradistinguished from the ordinary estate in the wife which by marriage merges in the husband. This is the least operation the words can have, if they are to have a'ny. This operation, then, we think the words do have. [1.] The practical result is, that as, to, say, a half interest in the property, the wife took what, is equivalent to, a separate estate. Did she bind this interest, by indorsing her husband’s notes ? Whether, when the wife has property settled to her separate use generally, without restriction as to alienation, but with no grant of the power of alienation, she can dispose of the property, to the use of her husband, is a vexed question. 3' Johns. Ch. R. 77. I incline to think that she can not. A married woman has not capacity to contract, and therefore, the contracts of a married woman are void. That this is the general principle of the common law, nobody, I believe, disputes. Can her having separate property make»any difference in this respect ? However, I hold myself open on this question. But when the property is not settled to the wife’s separate use generally, but is settled to her use, subject to a restriction against alienation, then, there is no question, I believe, but that she is, to the extent of the restriction, debarred from the power of alienation. Is there any such restriction, then, in this settlement ? We think there is. The words, “ not to be subject, in any manner, to the debts, contracts, or engagements,” of the hüsband, have, as we think, the effect, not only to prevent the estate created in the wife, from passing, by the marriage, into the husband, but also, the effect to deprive her of the power of subjecting that estate, in any manner, to the debts of the husband. To this extent, at least, we think they restrain her power of disposing of this estate. [58] But, if they restrain her from subjecting the property, in any manner, to the debts of her husband, they restrain her from subjecting it to those debts, by the manner of guarantying or endorsing those debts. And that is the manner which she adopted in this case; she endorsed his notes. True, she, as endorser, represents, it may be said, an independent contract of her own; but then, if this estate of hers, pays that contract, it, thereby, pays the other contract, the debt of the husband, so far as the present holders of the debt are concerned; and thus, in that case, her estate will in one “ manner” have been “subject to the debts” of her husband. [2.] We think, then, that, by virtue of these same words, her power over her estate was so restricted, that she could not by endorsing her husband’s notes, subject the estate to the payment of those notes. The result, thus far, is, that we think, that the wife had by the deed, what was equivalent to a separate estate; but that this estate was so restricted, that she could not, and therefore did not, bind it, by her endorsements made on her husband’s notes; and, consequently, the result thus far is, that there is in our opinion no equity in the bill, as to this estate in the wife. This is the result as it respects Judge Lumpkin and myself. Judge McDonald thinks, I believe, that the words create no separate property in the wife; but then, he also thinks, that she has an equity, which entitles her, to as much as she can get by the result at which we, the other two Judges, have arrived. Hence, he does not see fit to dissent from that result. [3.] Say, then, that the wife and the husband, take each,. an equal interest in the property; and, for convenience sake, let us assume this interest to be one-half. Is the half in the husband, such an interest, that it could not be reached by these creditors, without prejudice to the other interest in the property? We think that it is. It is difficult to see how [59] there could be any sale of the property, or of any interest m it, to satisfy these debts, without prejudice to the interest of the wife, and that of the issue of the marriage. The better way is, that so much of the income, as the husband is entitled to, be paid, under the decree of a Court of Equity, to the creditors, instead of to him. ' In this view of the case, we agree with the Court below— restricting the view to the share of the property which, we say, the husband takes. There remains but one other question. These creditors had not reduced their debts to judgment, when they commenced the suit. But they say, that Kempton is wholly insolvent, ■except as to his interest under the trust deed. This, we think, was reason enough to justify a suit before the debts had been reduced to judgment. In such a case, getting judgment would be a waste of time, labor, and money, without any compensation. Judgment affirmed.