Pendleton v. Bell

Bates, Judge, delivered the opinion of the court. The only question to be considered in this case is as to the power of Mrs. Pendleton and her -trustees to convey in fee portions of the real estate held by the trustees of her marriage settlement. The deed of marriage settlement, executed in the city of Washington, on February 7, 1853, is, in all its pai'ts, material to be here set fox’th, as follows : “ This ixx denture, made this 7 th February, in’the year 1853, between William A. Pendleton, of- the comity of Caroline, Vii’ginia, of the first part, Maiy Ann Coxe, of the city of St. Louis, Missoui'i, of the second part, and Richard Bland Lee, &c., and Thomas T. Gantt, of, &c., of the third part. Whereas, a marriage is agreed on and intended to be solemnized between the party of the first part and the said party of the second part, and on the treaty of said marriage it was agreed by and between them that all the property of any kind whatsoever, &c., of the said party of the second part, which she has, or which may at any time hereafter, before or during her coverture, fall to her by gift, devise, inhei’itance, in course of distribution or otherwise howsoever in her own right, should [107] be conveyed, assigned, settled, and allowed to her sole and separate use during her coverture, free from any control by, or liableness for or on account of her said intended husband, and subject to be disposed of by her appointment or direction as hereinafter provided; and whereas, also, the said party of the second part is seized and .possessed of certain lands, tenements and hereditaments, situate, lying and being in the State of Missouri and elsewhere, among which are the following lots of ground in the aforesaid city of St. Louis, that is to say: (here follows a description of real estate.) Now, this indenture witnesses, that, in pursuance and in part performance of the said agreement made as aforesaid on the aforesaid treaty of marriage, and in consideration, &c., the said party of the second part, by and with the consent, <fcc., has granted, bargained and sold, aliened, released, assigned, transferred, conveyed and confirmed, and hereby does grant, <fce., &c., to the said parties of the third part and the survivor of them, and the heirs, &c., of such survivor, all and singular the hereinbefore mentioned lands, tenements and hereditaments, estate and rights of the said party of the second part, &c., &c., to have and to hold with all, <fcc., &c., to the said parties of the third part, &c., &c. But nevertheless to the uses, on the trusts, for the intents and purposes, and by, with, under and subject to the powers, provisos, declarations and agreements hereinafter limited, expressed and declared of and concerning the same ; that is to say, to the use of the said party of the second part, her heirs and assigns, until the said intended marriage shall be had and solemnized, and, from and immediately after the solemnization thereof, to the sole and separate use, benefit and disposal of the said party of the second part for and during her natural life, free from any control by or liableness for or on account of her said intended husband, and to such uses as the said party of the second part may at any time or times hereafter, by any writing, signed with her hand, in the presence of two or more credible witnesses, direct and appoint; and on her death, to such uses as she may by her last will and testament, duly made and executed, [108] direct and appoint; and in the event of her dying intestate, to the use of the issue then living of the said hereby intended marriage ; and in default of such issue, then to the use of the right heirs of the said party of the second part.” * * * “ (B.) And this indenture, and the estate created by the same, is hereby made subject to this other and further condition and trust, namely, that all or any of the property and effects whatsoever constituting or to constitute the said trust estate, shall and may be from time to time successively charged, invested and reinvested indefinitely by the said trustees, on the sole and separate request made in writing, attested by two or more credible witnesses of the said party of the second part, and that each and every thus newly acquired accession to the aforesaid trust estate shall be subject to the uses hereinbefore limited and delared.” * * * “ In testimony whereof,” &c. In considering this question, it is proper to inquire — Firstly, what is the general object and intent of the whole instrument? The preamble evidently contemplated that the (then) future wife should, by means of her trustees, have as absolute dominion, in effect, over her estate as if she should remain unmarried, as well to dispose of it as to use it. The statement that the disposal of the property is to be “ as hereinafter provided,” is not a limitation upon the power of disposal, but only a reference to the following parts of the deeds for directions as to the manner of disposing of the trust property. The deed, then, vests the legal title in the trustees to the use, first, of Mrs. Coxe (now Mrs. Pendleton) until the marriage be solemnized, and after that, second, to her sole and separate use, benefit and disposal for her life, and to such uses as she may at any time or times direct and appoint, and, on her death, to such uses as she may by last will direct and appoint, and if she die intestate, to the use of the issue of the intended marriage, and, in default of such issue, to the use of her right heirs. The trustees were also authorized, upon her request, to charge, invest and reinvest indefinitely the trust property. The execution of this last power might result in the aliena [109] tion in fee of the whole or parts of the trust property. The whole deed shows an intention to place the property in such condition that it could be disposed of at the pleasure of Mrs. Pendleton. It is contended, however, that apt words to express that intention are not used in the instrument, but, on the contrary, such words are used as vest in Mrs. Pendleton only a life estate in the use, with the power of appointment for her life estate only. The property is held in trust for her sole and separate use, benefit and disposal during her natural life. Were this clause the only one which specifically gave to the wife a power to dispose of the property, it might well be questioned whether it extended beyond her life; but that it does authorize her to dispose of the estate for her life cannot be doubted. The next clause of the deed declares that the property shall be held to such uses as she may at any time or times direct and appoint. These words are sufficiently broad to comprehend the largest estate in the property, and if they be restricted to apply only to her life estate, they really moan nothing, as the power to dispose of that is already granted. They do mean something, and that meaning must be what they plainly express, that Mrs. Pendleton may appoint the whole use — that is, absolutely and forever, or in fee. The next clause of the deed, by the use of similar language, gives her power to appoint uses by her last will, and no one questions or can doubt but that this extends to the fee. It is thus perfectly evident that she was not to be wholly restrained from appointing a use in fee, and no causes appear why she may not do it during her life, as well as by will, to take effect after her death. Did any doubt remain as to the general intent of the deed of settlement, it would be solved by reference to the very comprehensive terms in which the husband covenants to permit and suffer the wife “ to use, enjoy, possess, control, give, grant and dispose of her said separate estate as she shall think fit in her life-time, and that it shall be lawful for her, during her coverture, by her last will and testament, to devise, bequeath [110] and dispose of the whole or any part of the property, estate, interest and rights hereby conveyed, of every kind whatsoever, wherever situate, and whether in possession or possibility, and that such last will and testament shall be good and available in láw, the consent of the said party of the first part thereto being hereby declared.” Mrs. Pendleton and her trustees can, by proper instruments, convey in fee, and, as that is the only question submitted to the court, no opinion is given as to the character and form of the instruments necessary to effect that purpose. Judgment affirmed. Judges Bay and Dry den concur.