By the Court.
Lyon, J.,delivering the opinion.
The only question in this case is this, whether the appointment of the plaintiff, Ephraim Tweedy, as trustee, by his wife Isabella, the cestui que trust is a good appointment, and is sufficient to vest in him the legal title to the trust estate ? The Court below on the application for anew trial, held that the appointment was not, and did not clothe him with the legal title to the trust estate, and granted the new trial on that ground. Which decision was excepted to, and the cause comes before us for review on that single ground. It is insisted by counsel for the defendant in error, that the appointment was void, because the husband was excluded by the terms of settlement, and that it is prohibited by law, that is, that as the appointment was the subject of, or matter of contract, and as the husband and wife were one in law, the contract was void, and that the appointment was made in lieu of McBride instead of Garvin, the trustee named in the marriage settlement. In reply to these objections, or rather arguments, for they constitute all that can be said in support of the decision complained of, we say:
*4491. The deed of marriage settlement does not exclude the husband from taking the appointment of trustee; it is true that there is a clause in the deed, that the property therein secured to the separate use of the wife, shall be “ wholly free of the control of her husband, or any future husband, and not liable for any debt or contract of either;” but this clause was intended to, and did only, exclude the. marital rights of the husband, or that interest in, or title to, the property, which, but for such settlement, would have vested in him by the marriage. Such clauses are to be found in all marriage settlements, or nearly all, and yet how often is such clause to be found in these settlements, when the husband himself is named the trustee therein ? The clause was not intended to, and does not exclude the husband from such control or interest in the property as the wife may think proper to give him. She is not excluded from giving him the control, or he from taking it by her consent. How does his appointment of trustee change the right of the husband in the trust property ? We cannot see. It does not give him the control of the property as husband, that is, in his own right, it only enables him to control the property as trustee for the wife, and as her agent, not otherwise.
2. But if the husband is not excluded by the deed from the appointment, does the law exclude him, or in other words, is the appointment by reason of the relation of the parties void ? Most assuredly not. In all these cases when the separate property of the wife is not in the name of any trustee, the law deems the husband as the trustee. Story Eq., 1830. Then, where the trust is vacant, and the husband in consequence is deemed the trustee, why should the appointment by the wife be bad, when she does that only which the law declares without ? Independently of this, “ in equity the wife may bestow her separate property by appointment, or otherwise, upon her husband as well as upon a stranger.” Story Eq., 1395. If she may do this, why may she not appoint him trustee ? That this is so in equity, does not alter the question, for it is but a question of power and of right, and if allowable in equity, and been exercised, the appointment, when made, becomes a legal right, and must be so recognized by the Courts of Law as well as of Equity.
3. That the appointment was made in lieu of McBride instead of Garvin, makes no sort of difference; the trust was *450vacant by the resignation both of Garvin and of McBride, and the deed of settlement provides “ that should said trust become vacant at any time by death or resignation of Garvin or any of his successors, the said Isabella M., by writing under her hand and seal, may appoint any other parson or persons, trustee in place of said party of the second part.” The main thing was the right to appoint in case of a vacancy; that was given, and that she has exercised properly; that she stated that the appointment was in lieu of McBride, was immaterial, she need not have stated anything about it; the trustee so appointed takes the place that Garvin held in the deed.
4. So we think the appointment was rightfully exercised, and vested the legal title in the appointee, and that the new trial ought not to have been allowed.
Judgment reversed.