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this respect over her property mentioned in that act, than an unmarried woman. But the act of 1860, while it permits a married woman, possessed of real estate as her separate property, to bargain, sell and convey such property, and enter into any contract in reference to the same, provides that no such conveyance or contract shall be valid, without the assent in writing of her husband, except in the cases mentioned in subsequent sections. Those cases are when the married female cannot procure the assent of her husband, in consequence of his refusal, absence, insanity or other disability, she may still make such conveyance or contract, without the assent of her husband, if she can procure leave to make such contract from the county court of the county where she shall at the time reside. The statute points out the mode of making this application, and prescribes the circumstances under which the court is authorized to allow such married woman to sell and convey her real estate, or to contract in regard thereto, without the assent of her husband: they are, 1, if the husband has willfully abandoned his wife, and lives separate and apart from her; 2, if he is insane, or imprisoned as a convict in any state prison ; 3, if he is an habitual drunkard ; 4, if he is in any way disabled from making a contract; or 5, if he refuses to give his consent, without good cause therefor. If either of these circumstances concur, the court is required to cause an order to be entered in its minutes, authorizing such married woman to sell and convey her real estate, or contract in regard thereto without the assent of her husband, with the same effect as though such conveyance or contract had been made with his assent. (L. of 1860, p. 158, SS 5, 6.)
A deed executed by a married woman under the acts of 1849 or 1860, does not require for its validity, that her husband should be united with her in the instrument. It should however be acknowledged by her on a private examination, apart from her husband, under the statute. (Gillett v. Stanley, 1 Hill, 121.) She can pass her title by such deed, but neither of these statutes has relieved her from the inability to make covenants for title in such deed. Though she joins with her husband in a deed in which there are covenants for title, the husband alone is liable for a breach of them, and as to the wife, they are void. (Whitbeck. v. Cook, 15 John. 483. Jackson v. Vanderheyden, 17 id. 107.) Nor can she be estopped by her covenant of warranty from claiming a subsequently acquired estate in the land conveyed by her. (Teal v. Woodworth, 3 Paige, 470. Carpenter v. Schermerhorn, 2 Barb. Ch. R. 314.) But she is as effectually concluded, as any other grantor, from denying any admitted fact which is essential to the effect and operation of the deed. (Grant v. Townsend, 2 Hill, 554.)
That these statutes were intended to obviate the necessity of a marriage settlement is farther evident by the provision contained in the act of 1860, removing the disability of coverture in respect to actions. It is expressly enacted that a married woman may, while married, sue and be sued in all matters having relation to her property, which may be her sole and separate property, or which may after the passing of the act, come to her by descent, devise, bequest, or the gift of any person except her husband, in the same manner as if she were sole. She is also allowed to bring, and maintain an action in her own name, for damages against any person or body corporate, for any injury to her person or character, the same as if she were sole; and the money received upon the settlement of any such action, or recovered upon a judgment is declared to be her sole and separate property. (L. of 1860, p. 158, $ 7.)
The foregoing enactments are innovations of the common law. They give to a married woman, as far as they go, the same privileges which are enjoyed by the unmarried. If the statute had stopped here, it would have still left the husband liable upon such contracts of the wife as she was permitted to make. But a subsequent section provides that no bargain or contract made by any married woman, in respect to her sole and separate property, or any property which may thereafter come to her by descent, devise, bequest or gift of any person except her husband, and no bargain or contract entered into by any married woman, in or about the carrying on of any trade or business under the statutes of this state, shall be binding upon her husband, or render him or his property in any way liable therefor. (L. of 1860, p. 159, S 8.)
The provision of the common law which required the husband to join and be joined with the wife in all actions in which she was the meritorious cause of action, seems thus to be modified. For though the statute does not in terms, say that the husband shall not be joined in an action against his wife in respect to the matters contained in that section, it seems to be clearly unnecessary to make him a party to an action in which no liability attaches to him or his property. If he is neither entitled to the fruits of the recovery in the one case, nor liable to the consequences of a defeat in the other, the principles ou which the common law required him to join or be joined no longer remain.
How far the principle of allowing a married woman to sue and to be sued with respect to her own property, as if she were sole, will affect the exceptions in her favor, in the statute of limitations, has not yet been decided. That exception is based upon the theory that she labors under a disability to seek redress by an action. This exception is in part the compensation for the disability which the law imposes. (Code of Procedure, § 88.) So far as the disability is removed, she ceases on principles of equity, to be entitled to the compensation. But probably while the statute remains in force, she is entitled to the benefit of all its provisions.
The statutes above referred to do not cover all the cases between husband and wife, nor do they forbid the making of marriage settlements, or essentially alter the law of trusts and powers. To a certain extent they render marriage settlements unnecessary; though they do not invalidate them, if the parties choose to resort to that mode of securing the property of the wife.
In framing a marriage settlement, it is desirable that the property should be vested in a trustee. This, however, is said not to be indispensable, though much to be preferred. In Strong v. Skinner, (4 Barb. 546,) the subject was fully examined by the court and the early cases reviewed. The learned judge, who delivered the opinion of the court, held that since the decision of Chancellor Kent, in Bradish v. Gibbs, (3 John. Ch. 522,) the validity, in equity, of an ante-nuptial agreement between husband and wife, without the intervention of a trustee, by which the wife reserves to herself the power of disposing of her own property, either real or personal, during coverture, has not been doubted. Though such an agreement becomes extinguished at law by the subsequent marriage, yet equity supports it, and will compel the husband to perform it. In such a case, whether the property be real or personal, equity will treat the husband as trustee, and hold him to account as such. (Blanchard v. Blood, 2 Barb. S. C. R. 352. 2 Story's Eq. Juris. § 1380. 2 Kent's Com. 162. 1 Mad. Ch, 376.)
In the creation of a trust for a married woman, it is as essential in a marriage settlement, as it is in a testamentary disposition of property, that it should not violate the statute as to the suspension of the power of alienation, if it be real property, nor the statute as to the accumulation of personal property, if the latter kind of propperty be the object of the trust. The revised statutes forbid the suspension of the absolute power of alienation, by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case where a contingent remainder in fee is allowed to be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age. (1 R. S. 723, SS 15, 16. Harris v. Clark, 3 Seld. 242.)
With respect to personal property, the statute provides that the absolute ownership thereof shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if such instrument be a will, for not more than two lives in being at the death of the testator. In all other respects, limitations of future or contingent interests in personal property are subject to the rules prescribed in the first chapter of the act in relation to future estates in lands. (1 R. S. 773, SS 1, 2. Harris v. Clark, supra.)
We have already anticipated, in our chapter on trusts, most of the cases which are applicable to the subject under consideration. The foregoing provisions of the revised statutes have been repeatedly the subject of consideration by our courts. In most instances the question has arisen under wills; but the principle is the same in all cases.
A suspension of the absolute power of alienation for a certain term, however short, avoids the estate; as “until my youngest daughter is eighteen years of age.” The suspension must be bounded by life. (Boynton v. Hoyt, 1 Denio, 53.)
A few cases will be adverted to in order to illustrate the provisions of the statute. (In Wood v. Wood, 5 Paige, 596,) there was a devise in trust for three infants, to pay them the rents and profits until they were severally twenty-one or twenty-two years old, with cross-remainders in case any of them should die without issue before coming into his shares with remainder over in case they all so died without issue. It was held by the chancellor that the limitation over was void for remoteness.
It has been settled that a devise in trust of an entire estate, to receive the rents or income thereof and to distribute it among several cestui que trusts, cannot be considered as a separate devise of the share of each cestui que trust, so as to protect the share of each as a tenant in common during his own life. If the trust is to endure for a longer period than two lives in being at the death of the testator, the whole devise in trust is void. (Coster v. Lorillard, 14 Wend. 265. Hone v. Van Schaick, 7 Paige, 231.) Nor can the absolute power of alienation be suspended by means of a trust term, unless the term itself is so limited that it must necessarily terminate during the continuance or at the expiration of not more than two lives in being at the death of the testator. (Hawley v. James, 16 Wend. 61. Hone v. Van Schaick, supra.)
With regard to personal property, it has been held that a trust to recover the income and apply it to the uses of a cestui que trust for his life, or a shorter period, renders the interest of the cestui que trust inalienable, and suspends the absolute ownership of the trust fund; and if such trust be so limited as to suspend the absolute ownership for more than two lives in being at the death of the testator, it is void. This is put upon the analogy to the restrictions of the revised statutes upon the power of alienating a similar interest in the rents and profits of the real estate so limited in trust. (1 R. S. 730, $ 63.) Hence an absolute limitation of a trust term for twenty-one years in gross, and a disposition of the rents and income by division among the testator's numerous children and grandchildren and their descendants, for the whole of that period, was held to be void. (Hone v. Van Schaick, supra; affirmed, 20 Wend. 564.)
In creating trusts under the revised statutes, the conveyancer should, as far as practicable, follow the precise language of the law. If he deviates from the exact phraseology in which the power is given, he cannot be certain that the trust will be valid. The 55th section of the statute of uses and trusts, (1 R. S. 728,) authorizes a trust to receive the rents and profits of lands, and apply them to the use of any person. Whether, under this provision, a valid trust could be created to receive the rents and profits, and pay them over to the beneficiary, was for a long time a vexed question, and led to much discussion. The opinions of the judges differed. Chief Justice