William H. Tyson, Appellant, vs. Caroline Mattair, Appellee, 8 Fla. 107

BALTZELL, C. J., delivered the opinion of the Court. This is a claim on the part of Mrs. Caroline Mattair to a negro boy, Primus, levied upon to pay her husband’s debts, under the execution of the plaintiff, Tison.

Her title is asserted through a deed of gift from her father, Henry Jones, “ to his youngest daughter, for and in consideration of natural love and affection, to her and the heirs of h&r body — the said Caroline Mattair and her immediate offspring to have and to hold the above described property to their own proper use and behoof forever.” From the proof in the case the property came to the possession of her husband, Henry Mattair, immediately after the marriage, about the year 1840, and has so continued ever since.

Whether it shall be regarded as the possession of the wife, will depend upon the words and language of this deed. If it creates a separate estate, independent of the husband, possession will follow the right, and he be regarded as holding for her, and his possession be hers. “ The words, to and for her usef “ in a gift to a feme have been adjudicated insufficient to create a separate estate — so determined by the master of the Rolls, and his decision afterwards affirmed by the Chancellor.” Jacobs v. Amyatt, 1 Mad. 376. In Johns v.

Lockheart, it was held “that a legacy to a feme covert to her own use and benefit,” is not to her separate use — (note to 3 Brown’s Chy. Rep. p. 318.) In five subsequent cases in'the English Courts, the same doctrine has been held. Wills v. Sayer, 4 Mad. 409; Rob.erts v. Spicer, 5 Mad. 491. In the case of Kensington v. Holland, it is said “ a gift to a wife £ for her own use and benefit’ does not clearly express such intention, nor to a husband for a wife’s own use and benefit.” 2 Myl. & Keen, 184. In Tilor v.

Lake, the words “ to be paid £ into her own proper hands for her own use and benefit,’ were held insufficient.” 4 Simons, 144. So as also “ the words £ to her own proper use and benefit,’ were held insufficient.” 2 Hare, 49. It is not pretended that the word “ behoof” in this deed adds any thing to the other words. It seems to be equivalent to “ benefit” in the cases cited.

In Alabama, it has been held that the “ words ‘ to the use and behoof oí the wife’ and £ to have the use and benefit of the labor and services of the said slaves and all the proceeds thereof during her life,’ do not create a separate estate.” Scott v. Abercrombie, 14 Ala. 270 — 803. Abundant other cases to the same effect will be found in the American Courts, but it is unnecessary to extend them.

It is said that the authorities “ afford but an uncertain” light to guide the footsteps of the enquirer after truth, and we are remitted to the application of elementary principles “ as the only unerring guide to correct conclusions.” How the inference is attained that there is an uncertain light on this subject, it is difficult to understand. The eight cases referred to above are directly in point, and have not been overruled. If they are, it has not been shown to the court, nor have we been able to find any such in our extended examination and reseai'ch.

So far fi’om it, the text books in England speak of the law as settled, thus — ■ “ expressions which have been held insufficient to raise a trust for the wife’s separate estate are ‘ to be paid to her and for her use,’ ‘to her own use and benefit.’ ” 2 Roper, Husband and Wife, 164. “ However the intention to create a sepaz’ate estate must be clearly and unequivocally expressed in order to depzdve the husband of his marital lights. Thus it has been held that a simple trust ‘for her own use and benefit’ will not Create a trust for her separate use,” quoting Wills v. Sayers, Roberts v. Spicer, Kensington v.

Holland, Byles v. Spencer, &c., Hill on Trustees, 420. “ Legacies to married women ‘ for their own use and benefit,’ have been held not to be sepaz'ate property.” 2 Bright, Hus. and wife, 208; so also Clancey, 267.

In justice Story’s great work on Equity Jurispz'udence, we find language to this effect: “Under what circumstances property given, secuz’ed, or bequeathed to the wife shall be deemed a ti’ust for her separate and exclusive use, is a matter which, upon the authorities, involve some nice distinctions.” After enumerating on the one hand the words and language that will exclude the marital rights and create a separate estate, he says, “ on the other hand, a gift or bequest after marriage to a married woman, ‘ for her own use and benefit,’ has been held not to amount to a sufficient expression.” 2 Story Eq. 610.

Chancellor Kent, in his Commentaries, makes no objection to-the rules thus laid down, although he is vehement on the subject of the right of disposition of the feme in her separate estate, evidently preferring his own views to those of the court of New York in the case of Jacques v. The Methodist Ep. Church, 17 John. Rep. 548, in which he was overruled. In a recent American work of merit, the general rule of the English Courts on the subject is given without dissent, and with a distinct reference to the cases quoted above of Tilor v. Lake, &c. 4 Bouvier Institutes, 274.

So that in reference to the words of this instrument, there is not only no uncertain light, but a remarkable clearness and certainty. So far from .uncertainty, there is entire unanimity, full harmony and accord of opinion. And when it is remembered that these decisions were given by the Court of Chancery in England in its highest estate, composed of the first intellects, men renowned for their integrity, to which is to be added the concurrence of our own judges, jurists and lawyers of highest intelligence, standing and character, there will be found no little hazard in the assertion that there is uncertainty.

If eight decisions on the very question, without a single one overrulling or in opposition, with the fall concurrence of the American Courts and elementary writers, both in this country and England, will not settle a point, will produce uncertainty, what is to be regarded as adequate to effect certainty and to remove doubts ? This uncertainty, it is said, makes it necessary to resort to elementary principles, and that these give a separate estate to the wife. They will be found to be to this effect: “ By marriage the husband and wife are as one person in law.

The very being or legal existence of tbe woman was by the ancient common-law suspended during tbe continuance of marriage, wbicb gives an absolute right to tbe bus-band in all bis wife’s chattels, personal in possession, a qualified right to her cboses in action, and a conditional right to chattels real, if be survive her, irrespective of bis right to alien them at bis pleasure during her life-time. Tbe husband becomes liable for all debts and obligations of bis wife incurred before tbe coverture.

The reasons upon wbicb tbe law virtually suspends tbe existence of the woman during coverture, appear to be those first for her husband’s safety in depriving her of tbe power to injuré him by any act¿ without bis concurrence or bis assent, either expressed or implied-, and secondly for her own security in guarding against tbe husband’s influence over her, by disabling her from disposing of her own property, except by those methods and with tbe solemnities wbicb thé law itself prescribed.” 1 Bopers, Husband and wife, p. 1. “ It is well known that tbe strict rules of tbe old common law would not permit tbe wife to take or enjoy any real or personal estate, separate from or independent from her husband.” 2 Story’s Eq. 606.

Such were tbe elementary principles governing this relation and tbe property belonging to or conveyed to the wife, when tbe Courts of Equity in tbe beginning of tbe last century recognized a separate interest and estate in her.

They did it with a declaration, and using language of this character — “ Courts of Equity will not deprive the husband of bis wife’s property, té wbicb be is by law entitled, unless tbe intention be clear that be is not to derive any benefit from it, and that it shall be for tbe personal use and disposition of the wife.” 2 Bright, Husband aud wife? 206. “ The purpose roust clearly appear, beyond any reasonable doubt, otherwise the husband will retain his ordinary legal and marital rights over it.” 2 Story’s Eq. 608. “Sucha claim on the part of a married woman being against common right, the instrument under which it is-made must clearly speak the donor’s intention to bar the husband, else it cannot be allowed.

It will appear from the cases that the strongest evidence of intended generosity and of bounty towards the wife will not be sufficient to-give her a separate estate, unless in addition language be used by the donor clearly expressing the exclusion of the husband, or else directions be given with respect to the enjoyment of the gift wholly incompatible with any dominion of the husband.” Clancey, 262. “ The intention to create a separate estate must be clearly and unequivocally expressed, in order to deprive the husband of his marital rights; And in modern times, judges have required much more stringent expressions for this purpose, than were once considered sufficient.” Hill on Trustees, 420.

The decisions in South Carolina are accordant with these views. “ The bequest is to her. This gives an absolute estate in personal property, and she would have the absolute right to dispose of it during her life, or at her death,. unless she were a married woman and and thus disqualiby law from exercising acts of ownership over it, in which" case her being and her rights are blended with her husband’s. The addition of the words (at her disposal at her death,) do not of themselves add to or enlarge her interest in or power over the property previously bequeathed to her.

If it had been intended to give her a sole and separate estate, free from the control of her husband, not subject to-his debts, and subject to her disposition by deed or will, it-would have been easy to have made such provision, and. the law is so desirous to extend to the citizens the right of disposing of their property, according to their affections, wishes and even caprices, that it will recognize and give effect to such departure from the general rule.

It does, however, require that the expression of such intent should be plain, explicit and unequivocal, else there will be a continual conflict from the desire to raise up implication of an intention to give a sole and separate estate to the wife from slight expressions, leading to unceasing litigation.” This was a bequest to a wife of personal property to her, and at her disposal at her death, and was held not to exclude the marital rights. Graham v. Graham’s Exrs. 143.

The elementary principles appealed to, plainly and manifestly in this case give the property to the husband; for if the intent be not plain, explicit and unequivocal, if there be “ an uncertain light ” as to the meaning of the words and language of the instrument, then, by the elementary principles prevailing, as well at law as in equity, the, separate estate is not created, but the property is subject to the marital rights.

Again, it is urged that “ intention, relation of the parties and the context, exercise an important relation,” and it is argued that the fact of “ this lady’s being a married woman when the gift was made, is a circumstance from which the intent should be inferred.” The opposite of this is clearly shown by the authorities already adduced, but more clearly in the decision made at a very early period, in which “ H.

B. bequeathed £100 to the plaintiff’s wife, to be paid within six months after the testator’s death, and a bill being filed by the husband for this legacy against the executor, his defence was that he had paid the wife and had her receipt for the money, and it was argued for the defendant the executor, that it must have been the intention of the testator to have bequeathed this sum for the separate maintenance of the wife, for that at the time of making the will the plaintiff and wife lived separately, and that she was much straightened in her circumstances, which was known to tire testator.

However, the Lord Keeper held it to be no good payment.” — 1 Raith. Vern., 261; Clancey, 262. If our own opinions were less fixed on the subject, we should feel great reluctance in disturbing a rule of property prevailing so long and with such universal acceptance and approval. It is nearly a century since the first decision was made.

Since then there is not one, but “ many decisions,” “ successive determinations,” a “long series of authority ” “ and a train of decisions,” all according, none opposing — not a dissent — so that there is no longer pretext for calling the principle ip question. “ lies adgudieata stare deeisis, is a first principle in the administration of justice — it is one of the most sacred in law.” “ Whatever the private opinion of a judge may be, it is safer to conform to established decisions, particularly in the House of Lords, but if not, the errors of great judges^ acquiesced in for a series of years, ought to be adhered to.

If mischief appear, the Legislature may interfere, but it is too much for the Courts. Upon the faith of an established rule and the acquiescence of judges and of the whole nation in it, property to the amount of millions may depend.” — Earn on Legal Judgments, 26-27. “Every innovation occasions more harm and derangement of order, by its very novelty, than benefit by its actual utility.

It is an established rule to abide by former precedents, stcore decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion, as also because the law in that case being solemnly (declared and determined, what before was uncertain and perhaps indifferent is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments, he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land — not delegated to pronounce a new law, but to maintain and expound the old one.

Jus dicere et non jus da/reP — 1 Blackstone Com., 69. “■ "Where a rule has become settled law, it is to be followed, although some possible inconvenience may grow from a strict observance of it, or although a satisfactory reason for it is wanted, or the principle and policy of the rule may be questioned. If there is a general hardship affecting a general class of cases, it is a consideration for the Legislature, not for a Oou/rt of Justice.

If there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than upon those particular circumstances to deviate from a general rule of law, for misera est servitus ubi jus est vagum aut incertmnP “ Obedience to law becomes a hardship when the law is unsettled or doubtful, which maxim applies with peculiar force to questions respecting real property, as family settlements, &c., and if in consequence of new lights occurring to pew judges, all that which was supposed to be law by the wisdom of our ancestors were to be swept away at the time particular limitations are to take effect, mischievous would be the consequences to the public.” — Winehous vs.

Rennol, 8 Bing., 557 ; 2 Vesey, Jr., 426-’7; Clark vs. Ludlum, 2 Bing, 180; 8th T. R., 501; Broom’s Legal Maxims, 61. “ The doctrine of the law then, is this : that precedent’s and rules must b.e foilowed qnless flatly absured or unjust ; for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration. To illustrate this doctrine by examples.

It has been determined time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the King or other superior Lord, Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions, and therefore can never be departed from by any modern judge without a breach of his oath and the law ; for herein there is nothing repugnant to natural justice, though the artificial reason of it, drawn from the feudal law, may not be quite obvious to, everybody, and therefore though a modern judge, on account of a supposed hardship upon the half brother, might wish it had been otherwise settled, yet it is not in Ms power to alter itP 1 Black.

Com. 70. The American Courts are by no means in conflict with the English on this subject. “When a rule of property has been settled by judicial decisions, and may reasonably be supposed to have entered into the business transactions of the country, it is the duty of the Courts to adhere to it and leave the corrective to the Legislature.” Macvay v.

Ijams, 27 Ala., 238. “ The rule of stare deeisis should not be departed from, except on the fullest.conviction that the law has been settled wrong.” 11 Texas, 449. ■ “ A rule which has become settled law is binding on the •Courts and should be followed.” 25 Ala. 201. “It is not so importantthat the law should be rightly settled as that it should remain stable after it is settled.” 7 Monroe, 62-3. “ It is the duty of the judiciary, and they have the pow,er to carry into effect the rights of parties according to existing law, not to make a law for each case.” 9 B. Monroe, 302.

The married woman’s law does not affect the rights of these parties. The husband’s right having vested in 1840, it could not be divested by a law passed afterwards in 1845. This law was prospective, and not intended to embrace property which had already passed to the-husband. — (See Thompson’s Dig. 221.) ¥e are of opinion then that the right of property in the slave Primus, the subject of this contest,- was in Henry Mattair, and not in his wife, and that her claim to him is not sustained.

The judgment of the Circuit Court will be reversed and set aside, and the cause remanded to that Court with directions to enter judgment dismissing the claim of Mrs. Mattair, so as to leave the property subject to her husband’s debts.