MITCHELL, adm'r, vs. GATES, 23 Ala. 438

PHELAN, J. The main question to bo deckled here relates to the true construction of this deed in trust, made by Margaret Henley to Elijah Henley, the day before her marriage with Philip Gates. Tho rule now well settled in relation to all such deeds, is this, that to exclude the right of tho husband from attaching to the personal chattels of the wife, which is and always has been considered a right upon which tho law looks wit!) favor, the deed itself must show a clear and plain intention to that effect.

Tho law makes one rule, conceived to be a good one ; now, by that same law, a single woman, or her Mends and advisers, majr make a law for themselves, a law for her particular case, which shall set asido and annul, to that extent, the general law of the land. It is, then, insisted, that this shall be done in such manner as to make that purpose plain. The husband is by force of circumstances not an actor here.

He stands upon his rights, his general legal rights, which the other party in the exercise of a legal right is supposed to be desirous to take away from him.— He relinquishes nothing; the other party only determines that she will exercise the power conferred on her by law while sole, of taking certain prospective rights from him to herself.

There can be no sounder or better principle then, to govern in such a case, than to say the general law in his favor will stand and prevail unless it is clearly and plainly changed; unless the terms of the particular law, so to speak, are as explicit and unambiguous as the general law and the rights under that general law whicli are intended to be taken away.

Hence the rule, that to confer a separate estate upon a married woman, the words of the deed or instrument must plainly show, of themselves, the intention to confer upon hor a separate estate, or, what amounts to the same thing, to exclude the marital right of the husband over the property. The books are so full of this that it is needless to cito any other than a few of the later authorities.—Cook v. Kennerly, 12 Ala. 42; Pollard v. Merrill, 15 Ala. 169; Geyer v. Br. Bank at Mobile, 21 Ala. 414; Brown v. Johnson, 17 Ala. 232; Gould v. Hill, 17 Ala. 84; 8 Yerg. 33.

Do, then, the words of this deed show a plain intention to exclude the marital right of the husband 1 The terms chiefly relied on to show this, are the words, “ to remain in peaceable possession,” &c., u and to take the profits thereof to her own use, and the increase, interest and income thereof to her own use and benefit, during her natural life,” &c., &c., and then “ to descend to hor heirs,” &c. The force of this word lias been often considered in this connection, and sound criticism has pronounced that it cannot be held to be equivalent to sole or separate.

It does not point at the marital, right, as these do. To say we take property to our own use, seems mainly intended to negative the idea that we arc taking it for another, with some trust or agency.— “ To have and hold the same to his own proper use and behoof,” are words to be found in almost every deed a man takes to himself for land in fee simple, or absoluto bill of sale for chattels.

It is a common sort of tautology, more used for sound and emphasis than to express any special quality of ownership out of the ordinary way. “ To his use,” “to his own use,” “to his oiun, proper use and behoof,” — what are they, but the same thing % The meaning of the first words is not amplified in the least when we get to the last. There are more words, but that is all; you gather no new idea. There is nothing besides in the deed which serves to take these words out of their ordinary signification.

These, of themselves, will not create a separate estate in a married woman, even when the deed is made by herself, of her own property, on the day before her marriage, and when the man she is about to marry is insolvent.—Tyler v. Lake, 2 Russ. & M. 183, and cases there cited; Haig v. Haig, 1 Dess. 348; Lamb v. Wragg, 8 Por. 73; Lamb v. Milnes, 5 Ves. 521; Kensington v. Dolland, 2 M. & K. 184. That both she and the man she was about to marry may have intended such a thing, is every way probable; and if we were left to govern our action by conjectures, as to their intention, it would not go hard so to decide.

But in the construction of what is written, wo have but one way to get at the writer’s meaning, and that is, through what he says, subjected to sound rules of criticism, rules proper to govern now and hereafter. True, every instrument is to be viewed by the light of surrounding circumstances.

The condition of the woman, and the man she was about to marry, at the time the deed was made, were therefore proper subjects of evidence, and so far the court did right in admitting the evidence objected to; beyond this it was not proper to go; what Gates said, after the marriage, or what he did, was not proper to show the true construction of this deed, and should have been excluded.^ If circumstances admitted in proof could be allowed to control the construction of this instrument, they would make the deed another deed ; they would change its character altogether.

It would be to say, that if a woman marries a solvent man, certain words .will not create a separate estate; if she marries an insolvent one, they will. So that it would come to this : the condition of the husband, and not the words employed, would make the deed. And if what the husband did or said after the marriage could be looked to at all, the same effect would be given, not only to facts and circumstances existing at the time, but to such as took place after the deed was made.

Where the instrument is complete as to the; interest or right convoyed, and where it is only executory, wo admit a just distinction is taken as to the meaning to bo put on particular words. Strong v. Gregory, 19 Ala. 146. Here the instrument is not executory, but complete. It will be seen that we think the court below erred, both in the charge which was given and in the refusal to charge as requested. Lot the judgment be reversed, and the cause remanded.