Booker v. Booker's Adm'r

WALKEN, J. The question to be decided by us is, whether or not the complainant’s bill contains equity. The object of the bill is the specific execution of an agreement by complainant’s wife, that “ he should have and enjoy” a certain tract of land of her separate estate, with the improvements on it, during his natural life, in consideration that he would improve it in a certain manner. The complainant made the improvements, and possessed the land during his wife’s life-time. Ilis wife being dead, he wishes the contract for the enjoyment of the land during his life-time enforced against her representative and devisees. The land was conveyed by way of gift to the wife during the coverture; but an ante-nuptial contract between the complainant and his wife creates a separate estate in property which the wife might afterwards receive, as well as in that which she then had. It is contended that, by the ante-nuptial contract, the wife’s interest is restricted to a life estate, with the power to convey by will; and that, therefore, she could make no transfer to her husband, which would be operative beyond the period of her life. The ante-nuptial contract reserves to Mrs. Booker the right to give, grant and dispose of her separate estate, as [477] sbe might think proper and fit, by will or otherwise. If the ante-nuptial contract in words limited Mrs. Booker’s right to a life estate, the question left open in the late case of Weathers v. Patterson, whether a general power of disposition enlai’ges a life estate into a fee, would arise. But the right of Mrs. Booker is not so expressly limited. By the ante-nuptial contract, the separate estate is first declared; then the unlimited power of disposition is secured ; and then the intended wife conveys to a trustee, upon the trust that she should have the use and benefit of the property, if she should require it, during Tier natural life-time, and, in the contingency of her dying without a will, that the property should be equally divided among the children which she then had. By giving the clause which reserves the use and benefit of the property to Mrs. B. during her natural life-time the effect of restricting the duration of her estate to the period of her natural life, we should do violence to that which gives to her an unlimited power to give, grant and dispose of the separate estate, by will or otherwise. By considering the former as simply securing a right to exact from the trustee the actual use of the property and the benefit of such use during life — as limiting the power of the trustee, and defining her right as against the trustee, in the use and benefit derivable from such use, and notas restricting the duration of the estate, we do no violence to the natural import of the language, and we reconcile the two clauses. We decide, therefore, that Mrs. Booker-had an unlimited power of disposition, and that there is no express estate for life created. It follows, that Mrs. B. had an absolute estate in the property, and had the right to invest the complainant with an interest continuing beyond her death. — Flinn v. Davis, 18 Ala. Rep. 132. 2. The complainant stipulates, that the persons to whom his wife might bequeath the property, should possess and enjoy it. But the contract, in that respect, was susceptible of modification or change by the complainant and his wife, for a fair and valuable consideration. — Wallis v. Long, 16 Ala. 738. An agreement between the husband and wife, that the husband should possess the land during [478] his life, would effect a modification, pro tanto, of the ante-nuptial stipulation that the wife might bequeath the property, and that the objects of her bounty should enjoy it. ' [3.] A married woman is in equity considered a feme sole as to her separate estate, and, having the power of disposition over it, might make the contract with her husband in reference to it, which is described in the bill in this case. — 2 Bright on H. and W. 223, § 8; 2 Story’s Equity, § 1372: Atherly on Marriage Settlements, 161, 162, 163; Andrews v. Andrews, 28 Ala. 432. ’What we have said conclusively shows, that the bill, as amended, contained equity; and that is the only question which we think is before us on the appellant’s assignment of errors. The decree of the court below is reversed, and the cause, remanded.