Freyvogle v. Hughes

[230] The opinion of the court was delivered, January 7th 1868, by Strong, J. The deed of Mary Hughes to John Hughes, dated January 25th 1848, was to him and his heirs in trust for the sale and separate use of Mrs. Bell. The cestui que trust was then a married woman. She subsequently became discovert, and in 1858 married Ereyvogle the plaintiff in error, who since her death remains in possession of the property conveyed, claiming it as tenant by the curtesy. The deed is very peculiar. While it creates a trust, it does not define the extent of the estate conferred upon the cestui que trust. It contains no words of limitation descriptive of her interest: nor does it in terms define her estate as a life interest; and there is no remainder over after the termination of the e'state, whatever it was, granted to her. But the legal estate was conveyed to the trustee expressly in fee simple, in trust to let and demise the premises, to collect the rents and income and pay it over to the cestui que trust, or to permit her at her option to demise, occupy and enjoy the subject of the grant, she paying for all necessary repairs. It was also made the duty of the trustee to make improvements, with the written assent of the cestui que trust, and to sell the property in fee simple or otherwise with the like assent, and pay over the proceeds of sale to Mrs. Bell. All this is inconsistent with any estate remaining in Mrs. Hughes the grantor. It is a transfer of the entire profits, not only of a life interest but of the fee, to the cestui que trust, without any words restricting her interest to' a life estate. Had the assurance been by will and not by deed, there could be no doubt that the general power of disposal would make the estate absolute and entire, no limited interest being expressly given. Here, however, the grant was by deed, but the whole estate passed out of the grantor, by the express terms of the deed, and the only trust declared was for Mrs. Bell. We think, therefore, she took in equity a fee simple in the lots conveyed; and if she did, she became entitled to a conveyance of the legal estate on the demise of her first husband. The trust for her separate use then ceased, and it was not revived by her second marriage: Hammersly v. Smith, 4 Whart. 126; Harrison v. Brolaskey, 8 Harris 299; Steacy v. Rice, 3 Casey 75. So it has often been decided in England: Knight v. Knight, 6 Sim. 121; Woodmeston v. Walker, Russ. & M. 197. This being so, it is obvious that the provisions of the deed respecting the trust, ceased to be operative when the trust itself ceased. They cannot therefore affect the second husband. As the case stands then, Mrs. Bell on the demise of her first husband was seised of an use executed, or a legal estate of inheritance in the lands conveyed by Mrs. Hughes to the trustee. The trust was not revived by her second marriage, and hence Ereyvogle, the second husband, is entitled to curtesy. Were the trust one [231] which continued.until the death of the original cestui que trust, it might be that the words of exclusion in the deed would debar the surviving husband of any marital right even after the death of his wife, as was thought by the learned judge of the District Court; but such is not the case before us. Judgment reversed, and judgment for the defendant non obstante veredicto.