A careful' study of the marriage ■ settlement, under' which the . question presented in this case arises, has brought me to-a diff erent conclusion from that of a majority of the court. , There seems to he-no dispute-that, where an instrument assumes to transferjiropertythereafter to be acquired, it-is ineffectual as a grant to pass the legal . title, but a.court of equity will construe the instrument as operating, by way of present" contract' to give a lien which, as between the parties, takes effect and attaches to the subject of -it as soon as it conies into the-ownership of the party; arid will enforce that lien by decreeing a conveyance of the property when that lien attache's. (Kribbs v. Alford, 120 N. Y. 519, 524.) By this marriage settlement the party of the first part, in- terms, transferred all and singular her-private fortune, property and estate “ which she may at any time or times hereafter derive, either by bequest, devise, descent,-distribu- " tion, gift or otherwise from any source or sources, person or persons, whatsoever or whomsoever, other than the said'party of the second part, whether the same be- now in possession, reversion, remainder^" contingency,, expectancy or otherwise howsoever.”-
The grant or transfer being in "equity a covenant -to give a lien which, as between the parties, attached -to- the subject of; it as soon-as it-came-into the" ownership of the covenantor,- the only question to be determined is whether, by the instrument • itself, the parties intended that the property which accrued to the party of- the first part *291to the agreement at any time during her life was included within this grant. Much stress is laid in the prevailing opinion upon the object of this instrument, and it is assumed that, its object was to transfer . to the trustees all the property belonging to Miss Borland, to be held for her benefit; “ 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.” I think the instrument itself shows that it was the intention of the parties to accomplish something more than this by the execution of the instrument. Upon the marriage of the parties the husband would have been entitled to all the personal property of the wife to which she would have become entitled during coverture. He relinquished that right, which was substantial, as it appears from the instrument itself that Miss Borland would be entitled upon arriving at the age of twenty-five years to a legacy from her grandfather. In the absence of such a settlement, Mr. Coit would have had the right to dispose of the property belonging to his wife, or to which she should subsequently become entitled during coverture, by making provision for his children or others, without regard to his wife’s wishes, and to place any , such property absolutely beyond her control. This right he relinquished, and such relinquishment was an ample. consideration for any promise or agreement which the wife should make as to the disposition that should be made of property which should accrue to her, or to which she should, at any time; become entitled. An agreement by her to dispose of the property to which she became entitled after the death of her proposed husband, as well as before, would be enforcible in equity and would be binding upon- her. If, therefore, . .the marriage settlement clearly and in express terms evidences the intention of the parties that all the property to which Miss Borland • should become entitled during her life, whether during coverture or after it had ceased, should be disposed of under the marriage settlement, it seems to me that it is the duty of a court of equity to enforce such agreement; and in my opinion this intention is clearly expressed in the instrument itself.
This principle is sustained by the English authorities. In Dickinson v. Dillwyn (L. R. [8 Eq.] 546), where the covenant in a mar*292xiage settlement applied expressly to any property which the wife or her husband in her right should become entitled to under the will or intestacy of, or by gift from, her father, the vice-chancellor held that a legacy from the-wife’s father, to which she became entitled after the coverture-had ceased, was bound by the terms of the instrument. It seems to he settled, however, and I assume the rule tó be, as stated by Lord Justice Jambs (Matter of Edwards, 9 Ch. App. Cas. 97), that such a covenant, prima facie, “is to be supposed not to be intended to apply to' property, the wife’s title' to which does not accrue.until after the husband’s death;” “ that in the absence of any expressions shewing that a covenant of this nature was intended to have a more extended operation, it is to be construed as if' the usual words -c during the said intended coverture ’ had been inserted.” It is, therefore, necessary to find in this marriage settlement an intention that the covenant as- to future acquired property should have a more extended operation than if the words “ during the said intended coverture ” had been inserted.
In the first place, it seems ifco me that some effect should be given to the omission of these “ usual words,” especially in an- instrument of. this character which shows upon its face that it was prepared by an experienced draftsman, and which contains most careful provisions for carrying into effect the intention of the parties. The recital in the instrument expressly states the agreement which had been arrived at between the parties to the proposed marriage. It is there stated that, “ whereas, upon the treaty for the said marriage between the said parties of the second and first parts, it was distinctly agreed and understood that all and singular the private fortune of the said party of the first part (the wife), whether derived, or tó be at any time or times hereafter derived, from or under the will or codicil in part above recited of .the'said testator, or from any_ other source. or sources whatsoever, and whether now in possession, remainder, reversion, contingency, expectancy or otherwise howsoever, should-before the solemnization of the said marriage be vested, settled, arranged, conveyed, limited and appointed in the manner or to the effect hereinafter expressed arid contained.” Thus, the parties ha-d agreed that all the private fortune of the wife derived from any source or sources whatsoever, and whether then in possession or' otherwise, should not be held for the benefit of the wife during *293coverture, but should, be vested, settled, arranged, conveyed, limited and appointed in the manner or to the effect provided for by the settlement. It was t-lie private fortune of the wife, whenever received by her, that was to be settled and disposed of under the terms of this agreement, and this private fortune of the wife was to be the private fortune which she was then entitled to or which she was to become entitled to at any subsequent period.
The instrument, then, conveyed all property that the wife then had or to which at any.subsequent time she should become entitled, “ 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 (the husband), whether the same be now in possession, reversion, remainder, contingency, expectancy or otherwise howsoever.” No words could have been chosen, it seems to me, which would more strongly express the intention of the parties to include within this marriage settlement all of the property to which the wife should at any time during her life become entitled without relation to the continuance of the coverture. And the subsequent provisions of this instrument show that such was the intention. The intended husband did, as before stated, by the instrument resign all power to make any disposition of this property to .his own children; but the instrument provided that if' children should result from the marriage then contemplated, those children should be entitled to a portion of the property to which the wife should become entitled and which should come under the provisions of this settlement. For, by the subsequent terms of the agreement, it was provided that the wife should have power and authority at any time during such marriage, and, •notwithstanding the same, to make and execute her last will and testament, or an appointment in the nature of a last will and testament, in the same manner and with the like effect as if she were unmarried ; provided, further, that such will and appointment be made and executed in favor of the issue of said marriage or any subsequent marriage of the said party of the first part, and that she should have full power and authority to bequeath or appoint the said trust premises to and among her said issue in such unequal or equal shares and portions as. she may deem-proper in regard to any or either of *294her descendants. Thus it was expressly understood that this trust should continue beyond the period of the coverture, and that the wife should have the power to bequeath of appoint the property held in trust under the instrument among her issue ; thus assuring to the children of the husband all of the trust property, except upon the contingency of the wife’s marrying again and having children by the - subsequent marriage. But even in that event his children, were to have a portion of the property to which the wife should become entitled. . There is nothing to show that this was 'intended to be limited to the property to which the wife should become entitled during the coverture; but, on the contrary, the language is so broad as'to include all property which she ever should become entitled to. Her husband thus secured to his children the right to the property which should accrue to the wife at any time during her life. .
The agreement also contains a convenant that the husband and his heirs, executors or administrators “ shall and will at any time or times hereafter make, do or execute every or any lawful act, deed, matter or thing which may be reasonably required of him in order the more effectually to vest the said trust premises or any part thereof in the said parties of the third part in trust for the said party of the first part or to carry these presents into full and complete effect according to the true intent and meaning thereof, and especially when the said party* of the first.part shall have attained her age of twenty-five years he wiír jlien execute and perform any and every lawful act, deed, matter \r thing which may be reasonably required of him in order to settle, limit and appoint according to the true intent and meaning of these presents the fortune and estate which the said party of the first t part will in that event become entitled to under the said will a(nd in part recited first codicil of the said James Lloyd, deceased — and so in like manner in regard to every accession of fortune which may accrue to the said party of the first part during her lifetime.”
Here, was a distinct recognition of the fact that the fortune of the party of the first part which was to pass und'er this marriage settlement was to be the fortune that should accriie to the party of the first part during her lifetime ; and her husband and his representatives after his decease covenanted that, as-to such fortune,-they would *295join in all instruments necessary to assure that such further property, acquired by the wife during her lifetime, should vest in the trustees and thus become a part of the trust estate.
There'is another provision of this instrument which I think is suggestive, and that is the one which authorizes advances by way of out lit to any one or more of the issue of the party of the first part, either by the said contemplated marriage or any subsequent marriage, thus clearly recognizing the necessity of this provision, as all of the property of the wife coming under the provisions of the trust, she would have no property of any kind to dispose of for an advancement to her children under the proposed or subsequent marriage. The provision of the instrument immediately succeeding provides for the payment of the income of the trust fund to the party of the first part (the wife), and that is not limited at all during coverture, but is to continue during her life. In every .clause in this marriage settlement where the property of the wife is mentioned it is spoken of as all the property which is at any time to accrue to her, and I cannot see how it could be more strongly and clearly expressed. .
For these reasons, in addition to those stated by the referee in his opinion, I think the judgment was right.
Judgment reversed, with costs, and judgment ordered dismissing complaint, with costs.