Richard Maiben, Trustee, et. al., Appellants, vs. Francis Bobe, Appellee, 6 Fla. 381

BALTZELL,C. J., delivered the opinion of the Court; On the 15th of November, 1829, David Tate gave by deed properly executed, to his sister, Rosanna Shomo, several negroes with the provision that they were “not to be subject to the control, or debts, or contracts of her husband,” and to be solely invested as the property of his sister.” Tate, his sister, and her husband, at this time and for a considerable period afterwards, resided in the State of Alabama.

The two latter, husband and wife, removed to Pensacola in this State, where a sale was made by them to Bobe, on the 15th day of June, 1847, of negro Henry, for the sum of three hundred dollars, and afterwards on the 1st of January, 1848, of negro woman Jents and her child Flemming, for the consideration of six hundred dollars. Bills of sale were executed in the name of Mrs. Shomo and her husband united in ratifying and comfirming the sale so far as his interest was concerned.

Before removal from Alabama, application was made to the Circuit Court of Baldwin County, for the appointment of Trustees, and two, William Waller and Richard Maiben, were appointed to take charge of the trust estate for Mrs. Shomo.— Maiben as surviving Trustee, instituted suit and recovered judgment in the Circuit Court at Pensacola, against Bobe the purchaser of these slaves, for the sum of sixteen hundred dollars, to be relieved from which, Bobe filed his bill in Chancery, and this gave rise to the present controversy.

The bill is inartificially drawn, leaving a good deal to inference, and deficient iri many material allegations.— The ease, however, has been discussed on the merits, and we now proceed to consider it in that light, without regard to the objections that might otherwise be entitled to «consideration. There has been no question made as to the effect of the deed of gift nor has it been denied that a separate estate is created by it. The main question then arises as to the power of thg feme, Mrs. Shomo, to dispose of the property.

"Whatever difference of opinion there may be on the subject elsewhere, in Alabama where this deed was made and where all the parties resided at the time of its execution, there is no diversity. The language of the Court there is emphatic. “We think the authorities are clear that a woman having a separate estate may charge or sell or dispose of it at pleasure and without the consent or concurrence of her trustee and may make a will of it, if personal property, at her death, and that a Court of law to some extent, and a Court of Equity to the fullest extent will give validity to her acts.

And where a deed, will or other instrument creating such separate estate imposes »o restrictions or conditons on the power of alienation or absolute disposition, the law will impose none except such as it imposes on the feme sole. In the case of Bradford vs. Greenway 17 Ala. 197, this Court showed a leaning to the English doctrine. The question being now submitted for decision we shall hold the English and New York doctrine which gives to the wife, having a separate estate, they mí disponendi, unless the same is taken away or restricted by the deed creating the estate.” Hoopers Ex. vs. Smith 23, Ala. 643.

There is in this deed of gift of Tate to Mrs. Shomo no restriction as to alienation, no direction of any kind as to the disposition of the property. This Court having held in the case of a contract made in a sister State, that the laws of that State as administered by her judicial tribunals must form the rule of its diseision, this decision of the Supreme Court of Alabama, might well be regarded as conclusive as to this point. Watts vs. Clardy, 2 Fla. 369.

But we have been strongly urged to assert the South Carolina doctrine, as the governing one, to the effect “that a married woman connot part with her separate estate or change it in any way without an examination, and that the power of appointing such estate must be expressly given, and the mode prescribed, be strictly pursued.” Ewing vs. Smith, 3 Dess. It, is not perceived how the decrees of the Courts of South Carolina can be held to apply to a pase in which there is no proof that the parties ever lived there, or had in view their laws in making the contract.

Without enquiring at present into the reason of the rule let us examine into the adoption of it. It was first started in the case of Ewing vs.

Smith in 1811, 3, Dess. 417, by a divided Court, three to two, and amongst the dissentient Judges we find that distinguished j urist, Chancellor Dessaussure, and so the matter stood until 1826, when the Court of Appeals consisting of three law Judges and two Chancellors Dessaussure and Waddy Thompson, all agreeing held the following language. “ How far a married woman may be considered as having the disposition of property settled on her for her separate use, is a question which is ¶0( yet finally settled in this State.

The subject is so fully considered in the able opinions in the case of Ewing vs Smith 3 Dess. 417, that we shall not have occasion toresor. to any other authority. It appears from the cases there collected to be the well settled doctrine in England that at feme covert has the exclusive right to dispose of such property as is settled to her separate use. From the time of Norton vs. Turvill 2 P. Wms., which was decided in 1723 up to the case of Ellis vs. Atkinson, 3 Bro. C. C. 565, decided by Ld. Thurlow in 1792, being a period of near seventy years, the whole current of doctrine is that way.

There was a short period of about ten years from the resignation of Ld. Thur-low, until Lord Eldon carne into office, during which time Lord Rosslyn and Lord Alvanly seemed disposed to question the correctness of these decisions. But Lord Eldon has since recognized their authority and there is now no principle better established in the English Courts;” Sh. Frazier vs. Center &c. 1 McCord Cly 274. In this condition the subject remained until 1846, when the case of Reed vs. Lamar announced the contrary doctrine supported by other more recent cases.

For the fifteen years preceeding the Case of Frazier, and twenty years succeeding the case of Ewing, decided by a devided Court, making a period of thirty five years,.the question may be considered as unsettled in South Carolina, her Chancellors and Judges being greatly divided about it. Letusturn to the other American Courts; here we find Pennsylvania favoringthisdoctrine. Tennessee apparently adoptingitin Morgan vs. Elam, though the case did not call for a decision on, the point, 4 Yerger, 375, and the Judges did not unite in this view of it, afterwards asserting the very contrary in Powell vs.

Powell. “ In the absence of any restriction-or limitation of appointment, the role in equity, on the subject is that a feme covert, acting with respect to her separate property, is competent to act in all respects as if she were & feme sole,2 Vesy, Sr, 190, H.... vs. S.... ,1 B. C.C., 192 Clancey on Hus. and Wife, 282, and this rule has been applied to all her dealings on the subject of that property;'1’ 9 Hump., 480. Reliance is placed on Mississippi as favoring that view, yet we shall find her Courts asserting it on the faith of the Tennessee ' case of Morgan vs.

Elam, and strange to say, a few months only, after that case had been, in effect, overruled, and after the Supreme Court of Mississippi had announced an adverse opinion in Frost, &c., vs. Doyle, through C. J. Sharky, that “the general rule at common law is that a feme covert having a separate estate, acts with regard to it as a feme sole,” 7 Smeed and Marshall, 75.

From these conflicting, varying and discordant views, we turn to the American Courts asserting the right of the woman to dispose of her property where there is no restriction in the instrument; and, first, wo have the case of Jacques vs. the Methodist Church, 17 Johnson, 548, decided by the New York Supreme Court, then in its prime, and commanding the confidence of the whole nation—a case elaborately argued, and of the decision of which the Supreme Court of Connecticut say, “we adopt the English rule, not only supported by the highest authority, but because we think it also supported by the strongest reasons.

These are most clearly and forcibly stated by the distingifished Judges in Jacques vs. Methodist Church. We think they are unanswerable, and deem it necessary only? to refer to the views expressed in those opinions as expressive of our own.” Jenley vs. Huntington, 20 Connecticut 175. The later New York Courts hold language fully as decided; “no doctrine is more fully and clearly established than that a feme covert, in regard to her separate estate, is considered in equity in all respects as a feme sole. The rule was first laid down by Lord Hardwick, in Peacock vs.

Monk, 2 Vesey Sen., 190, and for a long time Courts of Equity seem to have hesitated as to its adoption, and were disposed to qualify and restrict its application.

No traces however, of such hesitation or doubt are to be found in the more recent decisions, but on the contrary, they have carried out the rule in the fullest sense that its terms import; consequently it is now certain that when real or personal property is settled to the separate use of a married woman, her power of disposition or control is subject to no other limitations or restraint than such as the terms and the settlement plainly impose.” Noyes vs. Blackman, 3 Sanf. 540, 17 John. 548; 1 Vesey Jr. 46. 7 Paige 9, 3 Bro. C. C.

S. 20 Wend. 570; 14 Vesey, 542. 7 Paige 112 3 M. & K. 220, 1 Sanf. 17, 287. 1 Cr. & Ph. 53. 1 Beav. 1. In Virginia, Maryland, Ohio, Missouri, Vermont and the later decisions in Kentucky, we find the same views. West vs. West 3 Rand. 373. 2 Leigh 183, 5 B. M. 163, 10 14 Ib. 320; Missouri 760. 4 Vert. 336. 10 Ohio 216.— North Carolina is equally emphatic. “ In this respect, real and personal property differ, for as to the latter the separate estate of the wife includes her jus disponendi, aS held in Fettiplace vs. Gorges 1 VesyJr. 46. and 3 Bro. C. C.

S, in which Lord Thurlow explicitly states the distinction between the two lands of property; by saying that where the wife makes a voluntary disposition of an estate held to her separate use against the heir, it cannot be carried into execution, but with respect lo personal property, her gift is good” Ruffin C. J. Newbin vs. Freeman, 4 Iredell’s Eq. 318. Georgia too is quoted in Hill on trustees 513 as favoring the doctrine. 12, Geo. 200. In Alabama we have seen the adoption of the same view. 23 Ala. 643.

InNew Jersey, after a very elaborate argument against the English doctrine, the Chancellor said, “ in the midst of such conflict of opinions it is clear that we are left, in the determination of the question upon what may appear to be sound principles of equity. And I think it may be safely said that a feme covert is a feme sole as to her separate estate, so far as to dispose of it in any way not inconsistent with the terms of the instrument under which she holds.

Any danger apprehended from such rule can be avoided by words restraining the disposition and directing the precise mode in which it may be made, 3 Green 551. It is erroneously assumed, we think, that Chancellor Kent contended for the strict doctrine when discussing the Jacques and Methodist Church case.

His main aim evidently in that case was against requiring strict terms forbidding or directing alienation. “But if the intention be equally clear and certain in the instrument in question, why should more explicit language be required ?” At the close of his opinion in summing up the result of his examination of the cases he says, as to this, “ Perhaps we may say that if the instrument be silent as to the mode of exercising the power oí appointment or disposition, it intended to leave it at large to the discretion and necessities of the wife, and this is the most that can be inferred.” 3 Johns Ch. 114.

How very different is the language of that eminent Jurist Judge Story whose work on Equity Jurisprudence has become a text book to the American Lawyer. “ Thei'e is no doubt that a gift of personal estate, or of the rent and profits of real estate to a married woman for her separate use during her life would give her a complete power to dispose of the same.” 2 Story Eq. 828 30 § 1393.

Again “it may now be laid down as a general rule that all anti-nuptial agreements, for securing to a wife separate property, will, unless the contrary is stipulated or implied, give her in equity the full power of disposing of the same, whether real or personal, by any suitable act or instrument in her life time, or by last will in the same manner and to the same extent, as if she were a. feme sole” 3 Story, Eq. 827 § 1391. “ When a married woman has a power to dispose of property, she may execute it in any manner capable of transferring it.

When she has a power only over it she must dispose of it in the manner prescribed by the power.” 2 Story, E^. 828 § 1391. The English text books use language no less decided. “ It is settled that an express negative declaration is requisite to deprive a feme covert of her prima facie right of disposing of her separate estate. Hill on trust. by Wh. 422. 2 Rop. Hus. and Wife 236, 240; Brown vs. Bamfro, 11 Sim. 131; 2 Chitty Black. 293; n. 12. Nor do we apprehend there is the difficulty about the English cases which is assumed to exist as to the point under consideration.

When the 'case of Wagstaff vs-Smith was argued, not long after the decision of the disputed cases of Pyles vs. Smith, Whistler vs. Newman, Hulme vs. Tenant, Peacock vs Monk, &c., the Master of the Rolls expressed himself as follows: “The only question appears to me to be whether this lady has an absolute complete life interest in the dividends to her'separate use.

If she has, then unless the former doctrine of this Court, that as to separate property, a married woman is to be considered a feme sole, is abrogated by later determinations, she had a right to make any disposition she thought fit of that separate property. There is no case in which that doctrine has been impeached, that is, the broad rule that a married woman is to be considered afeme sole as to property tohersepparate use.

There aremany cases in which the question has been whether the absolute property, including a power of disposition, was intended to be given, or whether it was a personal gift only, without a power of disposition,” &c. &c. This is very different, here are no words of control, no words of restriction. Here are the very words to give the absolute property. “ The settlement was to trustees to permit the feme to take and receive the dividends of £750, to her own use during life, independent of her husband, &c., and she assigned to a third party.” 9 Vesey 520. “ Executed trusts” says Ch.

Kent, “ are enjoyed in the same condition and entitled to the same benefits of ownership, and are consequently disposible and devisable, exactly as if they were legal estates and there rights the tcseui que trust possesses without the intervention of the trustee.” 4 Kent. 302. A trust is executed either when the legal estate passes-as in a conveyance to B. in trust, or for the use of C. or when only the equitable title passes, as in case of a conveyance to B. to the use of C. in trust for D. The trust in this last case is executed in D. though he has not the legal estate. 4 Kent. 305.

Such is the relative position of this subject in the English and American Courts, and as treated by Judges, jurists and writers of the two Countries. Were we free to adopt the strict rule with such slight authority in its favor, we are yet constrained to say that it has not our sanction on the score of principle or analogy of propriety or fitness. It restricts the alienation of property. Such restrictions have been condemned from the very ea.rliestages of the law; they were held by Lord Coke to be absurd and repugnant to the freedom and liberty of freemen.

Chancellor Kent says that “ the maxim which he Lord Coke cites, contains a just and enlightened principle worthy of the spirit of the English law, in the best ages of English freedom. Iniquum est ingenuis hominibvs non esse liber am rerum suarum alienationem. 4 Kent 131. Perpetuity, the condition of an estate being rendered perpetual or for any period of time inalienable by the act of proprietors. Holthouse Law Dict., 335. “ A perpetuity is a thing odious in law, and destructive to the commonwealth.

It would put a stop to commerce and prevent the circulation of the property of the kingdom.” Yernon, 164. “A perpetuity is defined to he where though all who have an interest should join in a conveyanee, yet they could not bar or pass the estate. 5 Jacob Law Dic., 142. “ Experience says Sir Wm, Blackstone, hath shown that property best answers the purposes of civil life, especiallj in commercial countries, when its transfer and circulation are totally free and unrestrained.” An elegant writer speaks on the subjeef as follows: “ The necessity of imposing some restraint on the power of protracting the acquisition of the absolute interest or dominion over property, will be obvious, if we consider for a moment what would be the state of a community in which a considerable proportion of the land and capital was blocked up.

That free and active circulation of property, which is one of the springs as well as the consequences of property, would be obstructed, the improvement of land checked, its acquisition rendered difficult, the capital of the country gradually withdrawn from trade, and the incentives to exertion in every branch of industry diminished.

Indeed such a state of things would be utterly inconsistent with national prosperity, and these restrictions which were intended by the donors to guard the objects of their bounty against the effects of their own improvidence, or originated in more exceptionable motives Would be baneful to all.” 1 Jarman on Wills, 219-20. The most of the State Constitutions seem to have reference to> this subject, by declaring “ that perpetuties and monopolies are contrary to the genius of a free State, and ought not to be allowed.” Florida Constitution,

Article second,

Section twenty-fourth. Indeed one of the fruits of our glorious revolution was connected in some degree in the public regard with this question, of unfettering of estates. Our Legislature seems to have provided against this danger, by declaring in the law to secure the rights of married women, “that husband and wife shall join in all sales, transfers, and conveyances of the property of the wife, and the real estate shall only be conveyed by deed attested.” Thomp. Dig., 221 .

According to the strict doctrine, neither the trustee, the married woman, nor her husband, nor altogether, can alien or dispose of the property, thereby creating a perpetuity within the strict definition of the term ; nor can it be sold, except by the permission of a Court of Chancery. As a fair consequence, Courts of Equity may be considered, as the owners as far as alienation is concerned, to protect against bad bargains, in case of necessity to make good ones for them.

Now admitting this to be a rightful exercise of judicial power, which is by no means conceded, the enquiry arises, why not go further and protect them as to a disposition of the income, and the disbursement of the receipts and profits of the separate estate, far more important than its mere possession or ownership. But again, this restriction upon the rights of married women implies a distrust not by any means flattering to them or to the other sex.

Are those of our state less to be trusted or confided in, in this respect than the women of England or New York, and other states of the Union where freedom of alienation prevails ; are they more imbecile ? have they less character, less self reliance and ability to assert their rights, or have those of the other sex greater disposition to impose upon, oppress and take advantage Of their weakness and infirmities ? We think not. If they are unfit to be trusted with powers of alienation, their right of ownership may well be doubted.

Their sound judgment, good ^sonse and intelligence, their virtue and native energy, with the gallantry and sense of justice of the other sex are their surest and safest reliance. The world has an experience in its past history, not to be forgotten, of the effects of special guardianships of this kind. This experience has demonstrated that to hedge their property with restrictions and guards is as impotent and useless as to surround their persons by stone walls to prevent injury and insult.

We have then the experience of the English Courts for' upwards of a century, and of the first and best minds of that country, jurists, judges and commentators, in favor of giving this right to married women, and against the restriction.

In a late work of merit we have this tribute to the law as thus administered, “On surveying the temple of English jurisprudence we behold in it a range of columns which while they impart symmetry and beauty to the whole building, afford it also material support. “The laws of property are nicely adapted for preserving harmony between the diversified elements which constitute the sources of national prosperity, at a point where they are most liable to clash, by securing the necessary freedom of commerce in the alienation and pledge of every species of property on the one hand, and the proper and reasonable regard to private and family purposes, in the settlement- of property on the other.” Lewis on perpetuity 4.

We have in addition to this the vast prepondrance of the American Courts, jurists, judges and writersin its favor, we have the provisions of our own law, fortified by our own views of the fitness and propriety of the thing. Can we then hesitate as to its adoption ? In doing this we are by-no means to be considered as adopting- the rule to the full extent to which it has been carried by the English Courts.

We have purposely avoided the discussion of other questions, having an apparent connection with the one under eonsidertion, desiring to coniine our decision to the simple point presented as to right of alienation, where there is no restriction or direction in the instrument creating the separate estate. One other remark in connection with the case; it will be seen that as alienation is not permitted by the trustee according to the Carolina rule, a suit at law to recover damages as a substitute for the property, affirming, as a consequence, its sale at the option of the trustee is also inadmissible.

But aside from this,, what disposition, is to be made of the money when obtained by the judgement ? Is this to be paid to the feme ? If paid to her, has she power over it and to what extent ? If paid to the trustee, how is he to dispose of it? Mrs. Shomo charges that the sale was made through the improper influence and coercion of her hush and; undoubtedly, if this is the case, the Court without hesitancy would refuse the plaintiff the relief asked, and the Court would scrutinize, very carefully and cautiously, the act to ascertain that it is not liable to that objection.

She charges that “ her husband informed her, unless she signed the bills of sale he would run all the negroes to New Orleans and sell them, for he had the advantage of her and would use it and do just as he pleased. She -was well convinced he would do so and she would never know where they were.

As she was thus compelled to sign the bills of sale or have allher negroes run off, she thought if she signed in Pensacola she could afterwards recover them by law in our courts.” She states further that “a short time previous to the sale of these negroes her husband took a valuable female slave of hers in open defiance of her, and placed her on board of a vessel to be shipped to New Orleans for sale when a freind of hers, Mrs.

Welborne interposed in her behalf and prevailed on her husband to* bring her back.” ■ The testimony shows that other negroes of hers were mortgaged to Moreno and sold to Caldwell and Jemison.

She complains that a fraud was perpetrated upon her rights by her husband and said Bobe ; knowing that her husband had no right to these slaves, he Bobe unjustly forbore to ask her if she was willing to sell them, had he done so she would have told him that she was not willing to sell them, and but for. her husband’s threats she would have declared her unwillingness when Complt. and his agent came to her house.” Her aecount of her signing the1 bills is as follows: “He informed her that on a certain day Bobe would come to the house with others, to have the bill singed.

When he came with the bill of sale for Jintssone Mr. Crupper came along. This respondent was called out of her private room by her husband into the presence ofthese gentlemen, Crupper drew out of his hat or pocket ■a paper and asked if she would read it, she knowing what they had come s for said he need not, it was then handed to her and she signed it. No questions were asked her if she was; willing to sign. The money was paid to or received by her husband, and she withdrew.” It no where appears by the testimony of either Shotno • 0r his son, nor by any allegation of Mbs.

Shomo that Bobehad any information or knowledge of this unwillingness ■or coercion, so that there is no reason nor cause for the allegation of fraud as to him, on the contrary he appears to us as a purchaser for a valuable consideration without notice as to this objection. There is neither justification nor excuse in our opinion for the conduct of Mrs. Shomo in this matter. That she feared wrong or injury from her husband is no reason why a stranger should be wronged.

The apprehension of loss of property by her does not justify her in transferring the loss to him, nor does there seem to have been a necessity for such action, as by her own statement, a friend interfered on a prior occasion; why not resort to this expedient when a necessity existed for it at another time. But she seems to have relied upon the Courts in support of her rights; why not appeal to them in the first instance in time to arrest the danger ?

Why wait until an innocent party had bought and paid his money for the property, to commence upon him and try the experiment of getting a double price for herself and family. If this and other purchases are to be disturbed, a handsome speculation will'be’ made by her silence, and the confidence reposed in her and her family, to enure to their joint benefit. There is another fact to be borne in mind altogether inconsistent with fair dealing, and with this idea of coercion. One of these negroes was sold in June 1847, the other in January 1848. and during this time Mrs.

Shomo admits she traded at the store of Bobe; now why not inform him of the fact of this constraint and coercion, and admonish him not to buy again 1 Married women are entitled to the peculiar regard of Courts of Equity, but it is when they present a case of fairness ami of equity, free from unfair dealing and impropriety. We are rather inclined to the opinion that the defence of this party, Bobe, might have availed him at law. Such we understand to be the decision in ,3 Hill 249, Ford vs. Caldwell.

We have not this case before |us and do not decide the point, nor is it necessary as already intimated the case has been presented on the merits without objection on such grounds. The decree of the Court below will be affirmed with costs. DuPONT, J., delivered the following