Twining's Appeal

Mr. Justice Trunkey delivered the opinion of the court, January 24th 1881 [41] A feme covert is deemed, in respect to her separate estate, a feme sole only to the extent of the power clearly given by the instrument by which the estate is settled, and has no right of disposition beyond it: Wallace v. Coston, 9 Watts 137. This principle is not set aside by the Act of 1848, relative to married women ; for the separate estate thereby created is a legal one, totally distinct from an equitable separate estate created by agreement or devise: Penna. Co. for Ins. on Lives v. Foster, 11 Casey 134. Prior to that act, a married woman could dispose of her personal estate to her husband, by gift or otherwise, and, with his consent, to a stranger; the act took from her no right which she had previously possessed in regard to- the disposal of her personal estate: Brown’s Appeal, 9 W. N. C. 329. But the act had no reference to estates settled to the separate use of married women. These were secure before, and it was not intended to take away from the wife any of that protection of her separate property against her husband which she had previously enjoyed. “ All experience proves that the highest protection of the wife against the husband is in her disability, in her want of power to yield to his solicitations, or give way to her sympathies:” Wright v. Brown, 8 Wright 224. To grant the prayer of the plaintiff, would, necessarily, be upon a principle that the whole fund could be disposed of by agreement of the parties. That principle would enable the husband to influence the wife to destroy the trust created for her use. There is no difference in legal effect between this trust and one created by will or deed of a parent for use of a married daughter. If the beneficiary of the trust can defeat it by agreement while the reasons for its creation exist, it is worthless. The validity of trusts like this, against everybody, is too well settled to be overthrown, save by legislative power. Although there is absence of power of revocation in the deed, the circumstances, as shown, do not warrant the cancellation of the deed. At present Mrs. Monges is incapable of acting so as to defeat the primary object of the trust. With the single remark, that the point is not raised, whether upon the death of her present husband, she thereafter remaining sole and consenting, a decree could be made that the principal fund be paid over to the plaintiff, the decree is affirmed on the opinion of the learned president of the Common Pleas. Decree affirmed, and appeal dismissed at the costs of the appellant.