Walker v. Beal

CLIFFORD, Circuit Justice. The reasonable-inference from the agreement is. that it was executed at the request of the husband, and that it was kept by him as a voucher to show that certain sums were to be deducted from the amounts received by him from the complainant, as the net rents, interest, and income of the trust property. A'iewed in that light, the paper affords strong confirmation of the testimony of the daughter, and of the trustee, whose deposition is in the record. The prayer of the bill of complaint is for an account, and. [11] it is very clear that it ought to be granted, unless the defences, or some one or more of them, as set up in the answer, can be sustained. The respondents, object, in the first place, that inasmuch as the testator had his domicile in the state of Rhode Island, at the time of his decease, the circuit court here has no jurisdiction to grant the relief prayed for in this case. Undoubtedly the fact is, that the testator died at Newport in that state, and it appears that, his last will and testament was duly proved in the state of his domicile, but the answer admits that administration was also granted here, and that the testator left in this state, as well as the state of his domicile, real, and personal estate to a large amount. Insolvency is not suggesfed even in argument, and the sufficiency of the assets here is abundantly proved. The settled law of this state is, that the assets received and inventoried by the executors here are liable, under such circumstances, to the just claims of the citizens of the state, to the full amount. Richards v. Dutch, 8 Mass. 506; Gen. St. 508, § 39; Dawes v. Head, 3 Pick. 128. Citizens of other states also, where it appears that the estate is solvent, may by proper proceedings in the circuit court of the district enforce their claims against such assets, as it is well settled that those courts, as courts of equity, have jurisdiction over executors and administrators, in such a case, where the parties are citizens of different states. Grain’s Adm’r v. Creighton, 23 How. [64 U. S.] 104; Harvey v. Richards [Case No. 6,184]. Coming to the construction of the indenture, the primary suggestion of the respondents is, that it is merely a voluntary agreement of husband and wife to live separately and apart from each other during coverture; but it is quite evident that the proposition cannot be sustained. Irrespective of the parol testimony, it appears by» the terms of the indenture that the trust property was granted and transferred to the trustees, upon the condition that the complainant should accept the provision, as a full consideration for her covenant to relinquish all claims of dower to purchasers of any portion of his real estate, if sold during coverture, and to release her right of dower to his heirs, executors, or administrators after his decease. The terms of the instrument also required that she should accept the trust provision as a full satisfaction, not only for her support and maintenance, but also as a full satisfaction of all alimony whatsoever during her coverture. The legal effect of the covenant to live separate and apart is, that they would continue so to live, unless they should thereafter elect to live together; but they mutually covenanted with each other that if they should thereafter cohabit and live together, the indenture should •not thereby be rendered invalid, but that the trusts should be executed, subject to the conditions as expressed, in like manner as if they uhould live separate and apart. The intention of the parties clearly was, that the effect and operation of the indenture should continue during coverture, without suspension or interruption, and without the possibility of its becoming invalid, except upon breach of condition. Suppose that be so, still it is insisted by the respondents that the indenture is void, as a mere voluntary agreement to live separate and apart, because, as they contend, the proof of consideration as alleged in the bill of complainant is insufficient and unsatisfactory. The statement of the answer upon that subject is, that the respondents are ignorant whether or .not their testator entered into the indenture for the reasons alleged in the bill of complaint, and therefore they can neither admit nor deny those charges. The express allegation of the bill of complaint is, that the husband prior to the date of that instrument had been guilty of such extreme cruelty to his wife that she was entitled to a divorce from bed and board, and to a liberal allowance for alimony. Cruel treatment is proved by the daughter, in unmistakable terms, if she is to be believed. When asked whether he was kind, or otherwise, to her mother, she answered that she did not remember the time when he did not treat her mother cruelly; and she proves that the complainant received personal violence from her father, and that he compelled the mother and daughter to leave his house, without any just cause. Unless the witness can be considered as impeached, or in some way discredited, the introductory allegations of the bill of complaint are fully proved. Careful attention has been given to the inquiry, and the court has not been able to perceive any just grounds to hold that the witness is not entitled to belief. Satisfactory proof has been exhibited in the record derived from the testimony of another witness that the husband confessed that his wife had left him just before the date of the indenture, and that she had employed counsel to obtain a divorce and separate maintenance. Passages also in the indenture, and in the last will and testament of the deceased, afford confirmation of the statement of the witness; and the conclusion of the court is, that the witness is not discredited. Courts of equity have for a great length of time refused to acknowledge the common-law rule that a married woman is incapable of taking real and personal estate, and holding the same to her own separate and exclusive use. Arrangements of the kind are usually made through trustees, appointed for the purpose, to whom the property real and personal is conveyed, for her sole and exclusive use, but it has long been settled that the intervention of trustees is not indispensable. Whenever real or personal property'is given or devised or settled upon a married woman, either before or after marriage, for her separate and exclusive use, without the intervention of trustees, the rule in equity is, that the intention of the parties shall be carried into effect, and that the wife’s interest shall be protected against the marital rights and claims of the husband, and [12] also those of his creditors. 2 Story, Eq. Jur. 138 0. Here the property was transferred to trustees in trust, to pay the income to the cestui que trust, upon condition that she should relinquish her claims of dower to purchasers of such portions of his real estate -as he should sell during coverture; and if she survived him, that she should release her right of dower in all the remainder of his real estate. Such a trust, it is insisted by the respondents, cannot be upheld in a court of equity, but the court is not able to concur in that proposition. The views of the respondents appear to be, that the indenture, even if considered as divested of the clause which provides that it shall not be rendered invalid, should the parties thereafter cohabit and live together, is nevertheless void, as contrary to public policy. Objections of that sort have frequently been urged, but they have as often been overruled as they have been presented for consideration. Regrets have been expressed by judges that the rule had not been settled otherwise; but as often as the question has been presented in the later cases, another decision has been added to the list confirming it, until it may be said that it is universally established. Compton v. Collinson, 2 Brown, Ch. 377; Worrall v. Jacob, 3 Mer. 266; Jee v. Thurlow, 2 Barn. & C. 547; Webster v. Webster, 23 Eng. Law & Eq. 216; Wilson v. Mushett, 3 Barn. & Adol. 743; Randle v. Gould, 8 El. & Bl. 457; Babcock v. Smith, 22 Pick. 61; Hunt v. Hunt, 5 Law T. (N. S.) 778. Special objection is made to the provision of the indenture, that it shall not be invalid in case the parties should thereafter elect to cohabit and live together, as withdrawing, all motive from the husband for a reconciliation and return of his wife. Doubt cannot be entertained as to the intention of the parties. Where the instrument contains no such clause, it might well be argued that it was not the intention of the parties that it should continue in force in case of subsequent cohabitation, but every such suggestion is shown to be groundless by the terms of this instrument. Equally groundless is the suggestion that it was suspended during the period the complainant lived in the house with her husband, whether she lived there as agent, or as the wife of her husband. She returned to live with her husband at his request, and it was while they were so living together that the payments of the rents, interest, and income of the trust property were made, and that the checks for the same were received by the husband, as alleged in the bill of complaint. Webster v. Webster, 4 De Gex, M. & G. 437. The clear inference from the conduct of both parties is, that they alike regarded the indenture as valid and operative, and the conduct of the trustee speaks the same language. The error of the argument for the respondents consists in the assumption that the indenture was solely based on separation. Granting that theory, there would be' great weight in the argument, but the court has endeavored to show that the indenture cannot properly receive that construction. Temporary reconciliation and subsequent cohabitation did not so annul or suspend the operation of the instrument, because the parties had expressly covenanted that it should not, and the trust properly remained, affected by that covenant. Randle v. Gould, 8 El. & Bl. 457. Such being the fact, it is quite clear that none of the authorities cited to the point, by the respondents, have any proper application to the case. The next proposition of the respondents is, that the rents, interest, and income of the trust property, when paid to the complainant by the trustees, became wholly discharged of -the trust, and that the money thus paid to her, as rent, interest, and income, when paid by her to the husband, became the property of the husband. When the payments were made to the complainant, the several sums, as the proposition concedes, were so paid on account of and for the net rents, interest, and income of the trust property. The next point made is, that the rents, interest, and income became discharged of the trust when the husband was suffered by the wife to receive the checks and to collect the money. Unless it be assumed that the husband cannot be the trustee for his wife in any case, the proposition ought not to be sustained, as it would give effect to a positive fraud. Delivery of the checks was made to him, in every case, upon his unconditional assurance that he would invest the money for her benefit and that of her children, and in the belief induced by his own representations that he was more competent to transact business than the wife, to whom the funds belonged. But the husband may be trustee for his wife of gifts to her from others, or of the rents, interest, and income of property given by himself to her in trust, and lawfully held by trustees, for her sole use and benefit. 2 Story, Eq. Jur. 1380; 3 Kent, Comm. 163. Gifts from the husband to the wife may be-supported as her separate property, if they be not prejudicial to creditors, even without the intervention of trustees. Nevers v. Scott, 9 How. [50 U. S.] 22; Randle v. Gould, 8 El. & Bl. 457; Woodward v. Woodward, 8 Law T. (N. S.) 749; Grant v. Grant, 12 Law T. (N. S.) 721; Riley v. Riley, 25 Conn. 154; Turner v. Nye, 7 Allen, 181; Wells v. Stout, 9 Cal. 479; Dillinger’s Case, 35 Pa. St. 357. All the checks came from the trustees as payments for the rents, interest, and income of the trust property, and the proof is entirely satisfactory that the husband received the avails, as belonging to the wife, under the indenture, and agreed to invest it for her benefit and that of her children. Such arrangement imposes on the husband the character of trustee, especially in a case where it is concerning her separate property, and where to hold otherwise would sanction misrepresentation and fraud. Consent of the complainant that her husband should receive the checks, and collect the money as his own property, was never [13] given, and he never received the money with any such understanding. Bell, Husb. & Wife, 525, 526, 531, 534. Should the court overrule those defences, the nest objection of the respondents is, that the complainant is precluded from setting up the claim, by the indenture of compromise. But the answer made by the complainant to the proposition is decisive. She was a mere formal party to the adjustment, and it concerned only the residue of the estate, after the-payment of all debts, liabilities, and legacies. The purpose of the instrument was to effect an adjustment between the heirs-at-law and the residuary legatee, and as there was no concealment of this claim on the part of the complainant, the defence of estoppel is not maintained. The only remaining objection is. that the acceptance by the complainant of the provision made for her in the will of the husband is inconsistent with the claim she now makes; but the court is not able to adopt that conclusion, or perceive that it finds any support in the provisions of the will. On the contrary, the declared intention of the testator was, that the a mount secured to his wife in the indenture, coupled with the provision made for her in his will, should be in full for her separate maintenance, and in lieu of dower. Our conclusion is, that none of the defences set up in the answer can be sustained, and that the complainant is entitled to a decree for the amount.