DORSETT v. MARSHALL et al., 7 F. Cas. 935

CRANCH, Chief Judge (after stating the case). The only question now judiciaUy before the court is, whether there is sufficient equity in the present bül to sustain it It seems to me not to stand alone. It is connected with the two former bills, not only by reference, but by the subject-matter; and if all three bills are taken into view, or even the two last bills, I think there is sufficient equity.

The court has decided, at law, that, upon the death of the wife, the legal title to her personal estate and choses in action devolved upon the husband, and that he had a right of action against this complainant; although she had given her note for the money to Susan G. BeaU, as trustee. The question now is, whether the next of kin of Mrs. Marshall are not, in equity, entitled to this money under the antenuptial contract, and the deed of trust made by Robert Marshall and his wife to Susan G. Beall.

I think they have; and that such was the intention of the parties, both in the antenuptial agreement, and in the deed intended to carry that agreement into effect. The words of that antenuptial agreement are, not that she shall have the use of her property during the cov-erture, with a power to dispose of it by will, or otherwise, but that she shall “hold in herself” the property designated; that is, it shall never go out of her, the marital right shaE not affect it. it shall be retained as if she were sole. This seems to me to be the evident intent of the parties.

The deed of trust of ,the 1st of May, 1824, referring to the antenuptial contract of the 17th of February, 1820, states that “the said Robert Marshall did. at the same time, agree to make any other or further instrument of conveyance, which might be considered necessary, fully to assure and convey the said stock and debts above mentioned to the sole and separate use of the said Ann Berry, her heirs, and assigns, free and clear from any debts, control. demands, or incumbrances, of the said Robert Marshall.” And the indenture witnessed that the said Robert Marshall and Ann Marshall conveyed to the said Susan G.

Beall, her heirs, and assigns, the property therein mentioned, including fifty acres of land on which they then resided, and which had descended to her from her father, in trust, to hold the land for the joint use of the husband and wife during their joint lives; and. if he should survive her, then during his life. And in trust, that the said Robert should have the $2,000 judgment against Glover, for his sole and separate use, free and clear of the marriage contract, and of her separate claim. And in further trust, that the said Susan G.

Beall should hold the $1,500 judgment for the sole and separate use of the said Ann Marshall, her executors, administrators, and assigns, free and clear of any control or demand of the said Robert Marshall, or of his creditors, debts, or engagements; and to vest the money in stock, or to loan the same on interest, with the approbation of the said Ann Marshall, for the like sole and separate use of the said Ann Marshall.

And, in further trust, that the said Ann Marshall, during the life of her husband, might dispose of the said judgment, or its proceeds, by her last will and testament, or by any instrument of writing under her hand and seal, in the presence of two witnesses, during her coverture, in the same manner as if she were single.

All the property conveyed by this deed of trust belonged to the wife, and was secured to her sole and separate use by the marriage contract; but, by this deed, she gives her husband an absolute life estate in the land, instead of a contingent estate by curtesy, of which, at that time, he had only a possibility, as he had no child by that wife; and she also gives him absolutely the judgment against Glover, for $2,000 and interest, in consideration of which he conveys to the trustee all his right, if he had any, in the $1,500 judgment, and conveys it absolutely, for the use of his wife, not only during the coverture, but for the use of herself, her executors, administrators, and assigns, which is as great an estate as can be granted in a chattel.

He parted with his whole marital right over that subject for a valuable, and more than adequate consideration; and it is against conscience for him now to set up this claim. The act of Maryland devolves upon the surviving husband the legal right to the choses in action of his wife; but he takes them bound by all his conscientious obligations. I am, therefore, of opinion that there is sufficient equity in the bill to support a decree, and that the injunction ought to be continued until final hearing. DORSETT (MARSHALL v.). See Case No 9,128.

It has been suggested that the power reserved to the wife by the deed of trust, to dispose of the trust fund during the cover-ture, implies a remaining interest, or title, in the husband to that fund.

But her disability to control the trust fund did not result from any remaining title in the husband, but from the general disability of a feme covert to make any contract, or to dispose of her property in any manner, during the cover-ture; and the deed of trust was evidently intended to remove that disability, and not merely to impart to her a power limited to the period of her coverture, or to limit her power of disposing of her property to that period. If the husband had died first, her jus disponendi would have revived in as full force as she enjoyed it before her marriage.