Fitch v. Ayer

Swift, Ch. J. In this case there is no necessity of considering the question whether a married woman can have a separate estate ; or whether we will adopt the English law7 on that subject; for upon the principles of that law, the legacy in question docs not create a separate estate in the v/ife. By the will, the interest of 2001. is to be paid to the wsfe annually, during coverture. There is no decision in England⅜ which will shew that this legacy constitutes a separate estate in the wife. It is, in effect, and by law7, a gift to the husband himself ; and a legacy in this form has always been so con [146] sidered. He was entitled to receive it5 andbis receipt to the trustees was sufficient evidence of payment. There can be no doubt, then, that the appraisers committed a mistake, as stated by the plaintiff, with regard to the amount of the debt chargeable by the mortgage on the land on which the execution was levied ; to correct which it is proper for a court of equity to interpose. The proper relief is, for the defendant to rcconvcy so much of the land as he has taken more than sufficient to pay his demand. 1 would advise that the prayer of the bill should be granted, and a decree passed, that the defendant release so much of the land as he has taken more than sufficient to pay his debt, and the sum secured by the mortgage! and that he account for the rents and profits. Gouid, J. It is ascertained, by the finding, that in the appraisal of the land upon the defendant*» execution, there was a mistake, to the amount of 440 dollars, against the plaintiff, if he had a right to discharge, by his sole act, the annual interest, bequeathed to his wife. And it is agreed, that he had this right, unless the interest belonged to the wife, as her sole and separate property. In holding, as I do, that it was not so vested in her, I w ould not be understood to assent to the proposition, that in the state of Connecticut, a married woman cannot, in equity, hold property in this manner. For though, in Hutton v. Dibble, some strong grounds were taken in argument: no such doctrine, I trust, has ever received a judicial sanction in this state. ' The question here arises upon the intention of the testator, John Clark, as discoverable from the will.. Did he intend, thal, the plaintiff’s w ife should receive the annual interest in question, during coverture, to her sole and separate use ? Such an intent may be evinced, without doubt, otherwise than by the precise w ords, ** to her sole and separate use f but it certainly cannot he inferred, without some other evidence, than that which is furnished by the mere.fact of the legatee’s being a feme covert. In the present case, however, I am unable to discover any other ; and that fact, by itself, clearly affords no proof, or presumption, of such an intention. The circumstance adverted to, on the part of the defendant, that the accruing interest only is made payable, during the legatee’s coverture, and the principal, upon her [147] becoming discovert, appears to me, so far as it can have- any effect upon tlie question, to countenance the contrary presumption, For, the object of the testator, in making this discrimination, would seem to have been, to place the principal only, beyond the plaintiff’s control. But however this may be, it is sufficient to say, that, upon this point the onus probandi is upon the defendant; and that no evidence of such an intention, as he relics upon, appears in the will. The conclusion is, that the mistake complained of, in the bill, has intervened. Upon the question of relief, there is no doubt, that mistake is one of the appropriate grounds of equitable interposition. And where a mistake happens in the levy of an execution upon land, it may as properly be corrected, as if it had occurred in a deed of conveyance' : The former, being in effect, like the latter, only a species of common assurance. Tile other Judges were of the same opinion. Bill to be sustained, and decree passed.