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App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

APPEAL by the defendant, Francis C. Welch, as executor, etc., of Sarah Lloyd Coit, late of the city of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of February, 1899, upon the report of a referee, except in so far as it provides that the securities mentioned in the complaint are subject to a lien in favor of the defendant, for the payment to him as executor of 28839/2028839 of the value of said securities, to be fixed by a sale in case the parties cannot agree, and except in so far as the sum awards costs and allowance in addition thereto to the defendant.

Edward E. Sprague, for the appellant.

John L. Cadwalader, for the respondent.

RUMSEY, J.:

On the 3d of November, 1838, Miss Sarah Lloyd Borland, as party of the first part, entered into a contract with Henry Coit, of the second part, and John Borland and George Sprague, of the third part, in the nature of a marriage settlement, the occasion being the anticipated marriage between Miss Borland and Mr. Coit, and the object of the settlement being to transfer to the parties of the third part, as trustees, all the property of Miss Borland to hold for her benefit. The marriage took place, and the parties continued to live together as husband and wife until 1880, when Mr. Coit died. In 1896 Mrs. Coit received by will the sum of $20,000 which she delivered to certain persons for investment on her account. It was invested, and so continued until her death in 1898. She left a will by which she appointed the defendant as executor, and he qualified in that capacity. As such executor he claims to be entitled to the proceeds of the investment of the $20,000 which Mrs. Coit received in 1896. The plaintiff, as trustee under the marriage settlement, also claims to be entitled to the same money, and he has brought this action to obtain a judgment that the defendant, as executor of Mrs. Coit, be directed to transfer the property to him and be restrained from taking it into possession or making any claim upon it. Issue was joined in the action, and upon a trial before a referee it was decided that the plaintiff was entitled to the relief demanded,

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. and judgment to that effect was accordingly entered, from which this appeal is taken.

The marriage settlement in question recites that a marriage was expected to be solemnized between Miss Borland and Mr. Coit, and that Miss Borland, being then of the age of twenty-one years, would become entitled under the will of her grandfather, James Lloyd, to receive, when she reached the age of twenty-five years, a certain legacy which seems to have been a considerable sum of money. The settlement then recites that it was distinctly agreed and understood between Miss Borland and Mr. Coit that all her private fortune, from whatever source derived, should be settled, conveyed, limited and appointed in the manner thereafter expressed in the settlement. After these recitals it was agreed that, in contemplation of the said intended marriage, and in consideration of the uses, trusts and purposes expressed in the paper and other considerations therein. recited, the party of the first part (Miss Borland), with the full knowledge and consent of the party of the second part (Mr. Coit), conveyed to the parties of the third part and their heirs and executors "all and singular the private fortune, property and estate whatsoever and wheresoever, both real and personal, of her, the said party of the first part, as derived or to be derived from the last will and testament and codicil of the said James Lloyd, deceased, or which she may at any time or times hereafter derive either by bequest, devise, descent, distribution, gift or otherwise howsoever, from any source or sources, person or persons, whatsoever or whomsoever, other than the said party of the second part," in trust, to pay the income to Mrs. Coit and for certain other purposes more particularly expressed in the instrument, and to which it is not now necessary especially to refer. The instrument is a very long one and contains particular directions as to the conduct of the trust, the manner of payment of the income and regulating the powers of the trustees, and, among other things, an agreement on the part of the intended husband that he will do whatever may be necessary in order to vest the said trust property or any part thereof in the trustees, and especially agreeing that, when Miss Borland shall have attained the age of twenty-five years, he will do everything necessary to settle and appoint the fortune and estate to which she will then become entitled in the trustees, "and so in like manner in regard to every

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

accession of fortune which may accrue to the said party of the first part during her lifetime.”

The plaintiff claims that the true construction of this instrument is not only to transfer to the trustees all the estate of which Miss Borland might be possessed at the time of the solemnization of the marriage, and all of which she might become possessed during her coverture, but, in addition, all other property of which she might become the owner at any time after the death of her husband, except what she might receive from him; and that, as the legacy of $20,000 was not received from him, it passed to the plaintiff as trustee by virtue of the marriage settlement thus construed. The defendant, on the contrary, insists that the true construction of the instrument is to give to the trustees only such property as Miss Borland might own at the time of the marriage and such other property as she might become the owner of during her married life, and that no property which she might become possessed of after the death of her husband was intended to pass or did pass by the instrument.

The referee adopted the first construction of the instrument, and the question is whether his conclusion was correct.

We have not found it necessary to consider to what extent the instrument in question shall be said to be void at law as to afteracquired property of Mrs. Coit or the conditions which must exist before a court of equity will determine that such property shall vest in the trustee; for we assume that if, by the true construction of the instrument, it was intended that property acquired after the coverture shall pass, a court of equity will find no difficulty in carrying into effect that intention of the parties. The single question, therefore, which we have considered, is whether, by the true construction of the instrument, such after-acquired property passes.

At the time the instrument was made, the rule of law, as is well known, was that, immediately upon the solemnization of the marriage, there passed to the husband the absolute title to every particle of the personal estate which the wife might own, subject only to the condition that he should reduce it to possession while the marriage existed. He had also an estate for life in her real estate, and the possession and control of it, and the right to receive the rents and profits during the marriage, with certain rights afterwards, which it is not necessary to consider. (2 Kent Com. 130, et seq.) After

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. the death of the husband, if the wife survived him, the personal property did not vest again in the widow, but it went as property of the husband, either in accordance with his will, or to his next of kin, to the exclusion of the next of kin of the wife. This condition of affairs existed so long as the marriage lasted; but, of course, whatever property might come to the wife after the death of her husband belonged to her personally, as though she were single. It was in view of this condition of the law that this marriage settlement was made, for the purpose, as stated in it, that all the private fortune of the intended wife should be limited and appointed to the trustees for her benefit in the manner prescribed in the settlement, and for those purposes, the effect of which was to take it out of the power of the husband and devote the income. solely to the wife, and give her the right to dispose of it by will. To attain these objects it was necessary only that the trustees should receive the title to that property, which might come to the wife during the existence of the marriage. Upon an examination of the paper, we find that the active duties of the trustees with regard to the disposition of the income, so far as the wife is concerned, are limited to the said marriage. They are to hold the property for the separate use and benefit of Mrs. Coit, for and during the said marriage, and to pay over to her the income therefrom. They are to permit her, during the said marriage, to use and enjoy all household furniture and personal property which she may have received during that time. They are to permit her, and the party of the second part, during the said marriage, to occupy, free of rent, any residence which shall be given to her, or which shall have been purchased for her by any person except her husband. The instrument contains no directions to the trustees as to the disposition of the income, or the use of any property which shall have vested in them under it, after the marriage shall have come to an end by the death of Mr. Coit, if any such thing shall happen, except that it makes certain provisions for the issue of any subsequent marriage, from which it may fairly be inferred that it was not the intention of the parties to the instrument that the estate of the trustees should cease if Mrs. Coit should become a widow, but should continue in view of the possibility of her contracting a subsequent marriage, in which case the existence of their title would prevent the vesting of

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

the property in the second husband. Except for the inference arising from that provision, it would be almost conclusively presumed that, as in case of the dissolution of the marriage by the death of the husband, no duties remained to be performed by the trustees, their estate would come to an end, as was held to be the law in Hepburn's Appeal (65 Penn. St. 468). While, therefore, we cannot accept that case as authority for the conclusion that the trust was determined by the death of the husband, yet what is said in it as to the object for which the instrument was created, may fairly be considered as bearing upon the intention of the parties, which is to be ascertained in its construction.

The important consideration is that the instrument was made to protect the interest of the wife during the time while, because she was a wife, the law took away all her right to control her personal property during her life, or to dispose of it at her death; and that for that purpose only was it necessary that this trust estate should be created. This object is accomplished by restricting the words used to such estate as she should acquire during her coverture; and it is not necessary to give the instrument any more extensive meaning to carry into effect the intention of the parties. In view of that object, which is always understood in marriage settlements, and which is practically avowed in this settlement, it has come to be a rule of law that words of conveyance or transfer of after-acquired property of the wife must, in the absence of words showing a contrary intention, be read as though the words "during the coverture had been inserted in the instrument. Such is the well-settled law of England. (In re Edwards, L. R. [9 Ch. App. Cas.] 97; In re Campbell's Policies, 6 Ch. Div. 686; Howell v. Howell, 4 L. J. Ch. 242; Reid v. Kenrick, 24 id. 503.) The cases of Dickinson v. Dillwyn (L. R. [8 Eq.] 546) and Carter v. Carter (Id. 551) recognize the rule, and there is but one case, so far as the books show, in England, in which the contrary rule has been adopted. That is Stevens v. Van Voorst (17 Beav. 305), and that case is expressly overruled in the two cases first above cited. So far as there is any authority on this subject in this country, the same interpretation has been given to those instruments. (Steinberger's Trustees v. Potter, 18 N. J. Eq. 452.) In view of these decisions and the undoubted fact that the APP. DIV.-VOL. XXXVIII. 37

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