John P. Sanderson, Appellant, vs. Elizabeth S. L. Jones, Trustee, &c., Mary M. E. Harrison et al, Appelees, 6 Fla. 430

BALTZELL C. J., delivered the opinion of the Court: This case depends upon the power of a husband, under a marriage settlement, to convey an interest in certain slaves, part of the property settled. Robert Harrison, Sr., previous to his intermarriage with his present wife, then Miss Mary M.

Cooper, in connection with his intended wife, conveyed to trustees a large number of slaves, his own property, and also other property of hers “ in trust to the use and behoof of himself and his wife for and during their natural lives, and after the determination of that estate, in trust for the use, benefit and behoof of the child of children of them, the said Harrison and wife, share and, share alike to them, their heirs apd assigns forever.” This was dated 9th June, 1813.

After the intermarriage of his daughter Mary with John Sanderson, he conveyed on the 4th of January, 1844, eleven negroes to a trustee for the only proper use, benefit and behoof of his said daughter’. Mrs.

Sanderson having died, her husband filed his bill asserting title to the property under the conveyance aforesaid, and by virtue of his marital rights, against Robert Harrison, Sr., and the trustee of his wife, and after hearing and argument of counsel, a decree was rendered by the Circuit Court of Duval county “that Robert Harrison, Sr., is not heir or distributee of the said Mary Sanderson, and has no right, title or interest in and to the estate of the said Mary Sanderson in remainder, reversion or otherwise and that the complainant Sanderson is entitled to the possession of said slaves,” and an order was passed for their delivery to him by said Harrison.

The present bill is filed by Mrs. Harrison, wife of Robert Harrison, through the executor of the surviving trustee, and by her other children, claiming that the conveyance to Mrs. Sanderson was invalid and carried no interest to her nor to her husband, Sanderson. This, of course, involves an inquiry into the marriage, settlement between Harrison and his wife, and the nature, and extent of the interest of the parties to it. It has been assumed that a separate estate is created by it for Mrs. Harrison, which we think by no means clear.

The property is not settled to her sole or separate use ; the words, are, “ to the use, benefit and behoof of himself and wife.”' Undoubtedly, such words, applied to the wife, will not create a separate estate. Can the addition of the husband and the connection of his name make a difference ? The books are not silent as to this subject. In an elaborate opinion delivered by C. J. Saffold, of Alabama, the Supreme Court of that State say, “the property (slaves) is declared to be for the joint use and support of husband and wife and subject to their joint possession.

Was any case cited in argument where, by construction, so much violence was done to the language of the deed as to maintain that a clause expressly creating an estate for the joint use and support of two was intended to create a separate property for the sole use of one ?” Clancy, (p. 269) after a very learned investigation of the whole subject and a review of the cases, says: “ All these cases clearly prove that there must be a manifest intention evinced by the language of the donor that the wife shall ha-ve the exclusive property in the gift, without which Courts of Equity will not suffer the legal rights of the husband to be superseded.” They then say, “they come to the conclusion that this gift cannot enure to the separate usé of the wife and child or either, and that the marital rights of the husband have not been excluded.” Haskins vs.

Coalter, 2 Porter, 473; see also Wardell vs. Chastain, 17 Con. Eng. Ch., 225; Ibid., 9 Simon 525. A reference is given in a note to Hill’s work on Trusts, p. 420, n. by Wh. to Bender vs. Reynolds, 12 Ala., 441 and Geyer vs. Br. Bank, 21 Ala., 414, but we have not been able to procure them. 4 Ired. Eq. 241. It may be proper to remark that more stringent expressions would seem to be required by the later authorities to create a separate estate, than once were considered sufficient.

Hill on Trusts by Wh., 611, Even if the wife have a separate estate the inquiry arises, as to the interest of the husband, Robert Harrison in the property conveyed, and the broad ground has been assumed that he had none that he could convey. It is very clear that he has an interest if she has one, and .if he has none she is in the same condition.

The- authorities as to the relative rights of the two parties will be found to be as follows: “ Where property belonging to the husband and of which he is the purchaser, by settlement is vested in trustees in trust, to pay the income to the husband and wife jointly during their joint lives, the husband alone will be entitled to receive the whole income.” Hill on Trusts, 427; Duncan vs.

Campbell, 12 Simons 616. “ A husband in equity as well as at law is entitled to the receipt of the income ofhis wife’s property as a compensation for his liability to maintian her.” Hill on trusts 410 n. 3 Simons 370; 1 Roper Hus. and Wife, 273. “Consequently he will be entitled to the uncontrolled beneficial enjoyment of her life interest unless he deserts her.” Hill 410. In Jones vs. Mayrant the Court of Appeals of South Carolina, say “ it was decided in Barrett vs.

Barrett, that the husband supporting the expenses of the household, was entitled to the whole of the profits of the trust estate settled jointly on the husband and his wife. Under such a settlement the creditors of the wife would not be allowed to deprive the wife of her maintainance.” 4 Dess. 602. In the case of Napier vs. Wightman the same Court gay “this settlement provides that the defendant Wm.

J. and his wife shall have the whole of this estate (slaves &c.) during their joint lives without assigning any part to. her separate use, and if it be true, and that will not be controverted that all the chattle interests of the wife, belong to tfte husband, he is entitled to the whole income of this estate so long as they both live, and if arrested on a Ga- Sa. from a Court of law would be required to assign.” I Spears Eq. 369. The terms of the deed were to trustees in trust for the joint use of.husband and wife, during their joint lives, then to the use of survivor during life &c.

The same Court says farther in the same case: “ I shall not stop here to enquire whether under the Statutes of uses the defendant Wight-man has not a vested interest in the whole of the real estate during life. It is very clear that under the provision in the settlement, he i¡s entitled to the income of the whole estate real and personal, for the joint lives of himself and wife, and during his life if he survives, with power of disposition as to one half absolutely. Ibid. p. 370.

Whilst then we have seen that Harrison had and interest in the trust estate, the question yet arises as to his power to convey, which also has been earnestly and seriously denied and questioned. In the case of Shomo vs. Bobe decided at the present term, we had occasion to express our views on the subject of alienation in general, and we desire to refer to them in connection with this case.

On this subject before referring to authorities more directly in point, it may be well to refer to the general law as well as to the reasons for its existence. “ A conveyance toB. in trust or for the use of C., or where, 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 exectu ted in D. though he has not the legal estate.” 4 Kent 305. Our own Legislature in the law passed to secure the rights of married women gives the right of disposal to the man and wife.

We will add that in speaking of the power of alienation, Blackstone says: “we must consider rather the incapacity than capacity of the several parties, for all persons in possession are prima facie capable of conveying and purchasing, unless thé law has laid them under peculiar disabilities,” &c. and among these he enumerates persons attainted of treason, idiots, &c. &c. 2. Black. Com. 290.

Whilst such is the general rule, we shall find no diversity as to the particular subject of inquiry. “A perpetuity will no more be tolerated when it is covered With a trust, than when it displays itself undisguised in a settlement of the legal estate.” 1 Lewis on Trust, 138. “It is absolutely against the constant course of Chancery to.decree a perpetuity, or give any relief in that' case. 1 Chan. Reports, 144 ; 5 Jac. Law Dic., 143.

Blackstone in his Commentaries, speaking of the changes made by Courts of Equity in the 'doctrine of uses, says: “ They have raised a new system of national jurisprudence, by which trusts are made to answer in general, all the beneficial ends of uses, Without their inconvenience and frauds.' The trust will descend, may be alienable, is lia-: blé to debts, to executions on judgments, &c.” 2 Black.

Coms., 337. “Th e prima facie rule of trusts, is that the intention of the Settler shall be carried into effect;, but the intention cannot be pursued when it contravenes the public policy of the law.” “ So ti’usts cannot be created with a proviso that the interest of the cestui que trust shall not be aliened, or shall not be subject to the claims of creditors.

If it can only be ascertained that the cestui que irust, was intended to take a vested interest, the mode in which, or the time when the cestui que trust Was to reap the benefit, is pefectly immetarial, the entire interest may either be disposed of by the act of the cestui qUe trust, or may become Vestedin his assignees by operation of law.” Lewis on Trusts, 137-8; 6 Simon, 524 ; 1 R. and W., 395; 1 Simon, 66; 18 Vesey, 429.

In one of these cases, the Lord Chancellor says, “there is no doubt, generally speaking, that if property is given to a man for his life, the donor cannot take away the incident to a life estate. Equity.making a feme the owner of it, and enabling her as a married woman to alien, might limit her power over it, but the case of a disposition to a man, who if he has the property has the power of aliening, is quite different.” 6 Simon, 434. “ A trust is assignable.

An equitable interest may be assigned, though it be a mere possibility, and either with or without the intervention of the trustee, and the assignee of the cestui que trust may call upon the trustee to convey to him, and on his refusal may file a bill to compel a conveyance without making the assignor a party,” Lewin on Trusts, 499; Philips vs. Bridges, 3 Vesey, 127; Goodear vs. Ellison, 3 Russ. 583. In Lady Arundel vs.

Phipps, which was a settlement to the use of Lord and Lady Arundel for their lives and the life of the survivor, Lady Arundel became equitable owner of goods and chattels, and she became so under a contract of purchase which she insisted she was entitled to make with her husband himself, and her purchase was sustained against the creditors of the husband. 10 Vesey, 140-7-8. In Ford, trustee, vs.

Caldwell, the deed conveyed to the joint use of husband and wife for life, not subject to their debts, and after the death of either, to the use of the survivor for life, and after the death of the survivor to the use of the children of the marriage. Speaking of this state of facts, the Supreme Court of South Carolina, Judge O’Neill pronouncing the opinion of the Court, says: “ I hold, the trust was executed in the husband, at least for his life. For, according to the deed, he was entitled to the possession of the slaves; having this, he had both the legal and equitable estate for his life.

For the trustee had nothing to do with it during this time, he had delivered the slave to one who was under no legal disabilities; this was equivalent to a conveyance to him for the time he was to possess it. For' the condition annexed to the trust, not to be subject to the debts or contracts of the husband and wife, is void. The husband having both the legal and equitable estate could! transfer it, which he did, to Chur.” The general property was in Ford, trustee, but he had parted with the right to-possess it to the cestui que trusts, Swift and wife, for life.

At law, the wife’s being and rights are merged in the husband, and hence his possession for the joint use of himself and wife for life, made the property for that time his entire qualified legal estate.” This was a suit at law instituted-by trustee against the purchaser. 3 Hill, 249. In Love vs.

Hodges, which was to a trustee for husband and wife, the same Court quote the same case as: follows: “In personal estate the legal estate remains in the trustee until he executes the trust by delivering the possession to one capable of holding in himself a legal es-estate in the prop'erty to the extent of the interest intended to be conferred by the deed. In this case the trustee had nothing to do with the property during the life of the bus1band. He had delivered the slave to one who was under ho legal disability.

This was equivalent to a conveyance to him for the time he was to possess it.” 1 Spears, 596t An idea prevails that though the income and profits may be assigned, yet the body, the corpus of the estate, may not be. If this be the case, we have not perceived it in the general rule stated nor in the particular cases cited. There is another aspect of the case worthy of consideration. Suppose a decree made in favor of Mrs. Harrison* as contended for, and the property restored, who would take the possession, Who be entitled to the income during the life of Harrison ?

The answer is not a difficult one, the husband, Harrison himself, and no other person, so that the suit may be regarded, and properly cannot be regarded in any other light, than as one instituted by him and for his benefit against his own assignee. Were these authorities less clear and satisfactory than they seem to us to be, we yet think the decree in favor of Sanderson against Harrison conclusive as far as his possession of the property, his interest in it and his power of alienation are concerned.

It was the decision of a Court of competent jurisdiction as to these issues on the subject itself, and whether erroneous or not it constitutes the law of the case. We shall not undertake to say that this'decision is conclusive on Mrs; Harrison in evéry possible aspect of the case. It is sufficient that the facts presented by the record do not remove such conclusion. As far as the facts of this case are concerned, we have possession by the husband of the trust property for near forty years to the present time—thirty years prior to the transfer to Mrs.

Sanderson, with receipt by him of the income, profits, &c., without interference by the trustees, alienation by the father and husband so possessed to his daughter, possession by the latter and the right of her husband confirmed and established by decree of the Court. As far as the law is concerned, we find Robert Harrison, the husband, rightly entitled to the possession of the property, to the income and profits arising from it,—that he had a right to sell to the extent of his interest, and his assignee to hold it. ■ We have not referred to the fact that the assignment to Mrs.

Sanderson does not conflict with the main design of the deed of trust, but is merely in advance of it. The children of the marriage are expressly provided for in the settlement. Nor is the case altered by the fact, that by the dispensation of Providence the husband, rather than the wife, is before us claiming the benefit of the last settlement. He has been decided to be entitled to her rights and interests, and is entitled to the same favorable consideration that she would be if contending for the property herself. It remains to dispose of the case as far as the children of Mrs.

Harrison are concerned, who claim the remaining interest after the termination of the life estate. The question of their interest can only be before us for one purpose, and that is for the protection of the property, so that they may assert their interest when it comes into existence. This they may be entitled to obtain from the Court, on a proper showing by a bill quia timet. If the property is in danger of being diverted and squandered, and they have the interest contended for as against Sanderson, they may obtain relief from the Court. 1 Story Eq., §827. Osborne vs. VanHorn, 2 Fla. 361.

We have not considered whether, if Robert Harrison, by any casualty should become unable to support his wife, she might not have a right to call upon Sanderson to contribute to the extent of his interest. Such case has not been presented by the proof nor the pleadings, nor have we thought proper to determine the question of her right in the event of his death and her surviving. These questions will be appropriately decided when properly presented.

The decree of the Circuit Court overruling the demurrer will be reversed and set aside, and the case remanded with directions to dismiss the bill of complaint and dissolve the injunction without prejudice to other rights and interests than those now determined. DuPONT, J. Delivered the following