Clevenstine's Appeal

The opinion of the court was delivered by Bell, J. We-have looked into the case with an anxious desire to support'the decree made below in favor of the widow, Mrs. Nyce, but find it is impossible to do so, consistently with authority. By the terms of the bequest in question, it is clear the legatee was entitled to the possession of the fund given, during her life. It is not a mere gift of the accruing interest—though even that would carry the principal sum—but it is of the use of the money itself during life ; to be paid to her children after her death, and not before. The effect of such a bequest is to make the donee absolute owner of it during the period prescribed; and in this light Mrs. Nyce was to be regarded. But according to a well ascertained [499] rule, there is nothing in the language employed by the testator indicative of an intent that the legatee should take a separate and distinct interest in the fund, independently of the marital rights of her husband. Here are no words creative of absolute and uncontrollable dominion in the wife: Jameson v. Brady, 6 Ser. & R. 466; Heck v. Clippinger, 5 Barr 387 ; Snyder v. Snyder, 10 Barr 423. It results from this, that the law placed the fund within the power of the husband, to acquire in it, by the exertion of his marital right, just such an interest as his wife took under the will of her father. This right has been exercised by a reduction of the sum bequeathed to the actual possession of the husband, thus transferring the property of the wife, to every intent: Dakins v. Beresford, 1 Ch. Cas. 194; Siter’s case, 4 Rawle 469; Woelpper’s Appeal, 2 Barr 71; for it is almost needless to observe that the participation of the wife in the receipt of the money from the executor, can work no difference in the acquired right of the husband. Had the bequest been of the use of a specific chattel, there Avould have been no room for the question whether the reduction to possession by the husband vested him with the ownership of the thing given, for the period fixed by the will. And I am unaware of any distinction in this respect, between an ascertained sum of money and an article of household furniture, or other movable. . A distinction in favor of the wife was attempted at the bar, founded upon her supposed nomination, as trustee. This is, however, a mistake. She is not named as trustee for herself, which would be an absurdity. Though the term is awkwardly introduced, it is very clear the testator simply meant to designate her as trustee for the preservation of her children’s interests, under some vague apprehension that a trustee was necessary to uphold their postponed claim upon the fund, during the life of the mother. It is, in fact, simply a gift to the mother during her life, coupled with a trust for her children, to take effect after her death. But had a trustee for both the mother and children been interposed, it would have worked no change in the result, as is evident from the doctrine discussed in Evans v. Knox, 4 Rawle 66. There would still have been a beneficial interest in the wife, which the husband, with the assent of the trustee, might have made his own. I know of no case under the law, as it stood before the late enactment, where the husband could be balked of the exercise of his marital right, except the single instance of a separate property in the wife. As the case stands, it does not present a naked trust in the wife, which survives to her, after the determination of the coverture. Even conceding her to be a trustee for herself, it is a trust coupled with a beneficial interest, subject to the power of the husband, and, therefore entirely distinct from the instance of a mere trust, put by the appellee’s counsel. It-results from this that, having laid his grasp upon the fund, and thus made it his own, it be [500] longs to the estate of the husband during the period it would have been enjoyed by the-wife had she been sole. After the determination of that period, it of course goes over to the children designated by the will. We regret this result, as probably defeating the intention, or, at least, the wishes of the testator; but we cannot help it. If he designed the wife should enjoy his bounty, irrespective of her husband, it is a pity he had not informed himself of the proper method to effect this. Luckily, questions such as this will soon become rare, under the recent improvement made in our law, relative to the rights of married women in property acquired by them. As it is, the decree below must be reversed, and it is so ordered, and that the sum of $840.35-J, directed by the said Orphans’ Court to be paid to the said Catharine Nyce, be disallowed. Than this, we can make no further order in respect of the residue of Jacob Nyce’s personal estate, as the paper-book does not furnish us with facts to enable us to do so understandingly. If the sum in which the children of Mrs. Nyce by her first husband hold an interest in remainder, is, under the will of the last husband, presently payable to his legatees, the former may require security to be given by the latter, in pursuance of the 49th section of the act of 24th February, 1834. To enable the parties conveniently to attend to their respective interests, the record will be remitted to the Orphans’ Court, with directions for further proceedings. Decreed accordingly.