It is claimed by the appellee that a separate estate was limited to her by her father’s will, when she was a feme sole, and that after her marriage she held it free from her husband’s control. Whether it was competent for the father to make such a settlement, we will first consider; and it seems to be well settled afiirmatively. Bishop says
“In legal principle and on the prevailing authorities, both English and American, it is competent to limit an estate to the separate use of a woman yet unmarried, where no particular marriage is contemplated; and on her afterwards becoming covert, she will hold it as her separate estate, free from the control of her husband. But in most of the cases in which this has been allowed—not, it would appear, in all—there has been a trustee, who was a third person, in whom the legal title was made to vest.” He cites Robert and wife v. West, 15 Ga. R. 122, 138; Fears v. Brooks, 12 Ga. R. 195; Waters v. Tazewell, 9 Md. R. 291; Lamb v. Wragg, 8 Port. R. 73.
In Fears v. Brooks, supra, at page 197, it is said in a note that Uesbit J. stated the English doctrine and authorities thus: “A separate estate may be made in
It being competent to limit a separate estate to a feme sole, which, on her subsequent marriage, she will hold free from the control of her husband, we will next inquire, was the estate given to Lucy Isabella Maupin by the will of her father, Addison Maupin, limited to her separate use ?
No particular form of words is necessary to create a separate estate. Any words showing an intention to do so will suffice. 1 Bishop on the Laws of Married Women. The same doctrine is enunciated in West v. West’s ex’or, 3 Rand. 373, cited in petition of appellant. J udge Cabell said: “No particular phraseology is necessary to the creation of a separate estate in sáfeme covert, even where it is created by deed. Much less is it necessary -when the estate is created by will. In this respect, as in all others growing out of wills, the intention of the testator is to govern.”
In this case the gift or settlement was made by a will, which is very inartificially drawn, and shows upon its face that the draughtsman was not a lawyer, or one skilled in drafting such instruments, and therefore it cannot be expected that the intention of the testator will be expressed with philological accuracy or legal
The testator evidently felt that he was confiding important interests of his daughters to a third person, and that he would be invested with great powers- and a large discretion affecting their interests. He could not select and designate the person himself, because before the time came for him to act, which could not be until after the death of his wdfe, who might survive him a great many years, the person he selected might not be living. He also doubtless desired that the trustee selected should be a friend of his daughter and acceptable to her, and therefore preferred that he should be chosen by her at the time he was needed;
By the fifth clause he directs the sale of all of his estate by his executor, which was partly real and in part personal, with a view to a division, which was to be made within twelve or eighteen months after the death of his wife.
Again, in the sixth clause, he reiterates the injunction upon his executor as to the disposition of the portions coming to his daughters, as follows: “I wish the portions coming to my daughters, Mary E. Hicks and Lucy Isabella Maupin, placed in the hands of their respective trustees, and used for them as hereinbefore directed. ” He had before directed that the trustee into whose hands it should be placed should be required to give ample security for the faithful performance of the trust committed to him. That is not repeated here, but the requirement 'is, by the words “as hereinbefore 'directed.” But in this sixth clause he is more explicit as to the powers and duties of the trustee; he is to hold the trust property in his possession, which implies that the legal title, which goes with the possession of personal property, is to be in him, but he is “to use it for them.” The words are few, but they are replete with meaning. How to use it? It is money, to be placed in his hands by the executor. How can he use it for them but to lend it out, or otherwise invest it? If he invested it in stocks, or in real estate, or other property for them, it would be using it for them, and it would be within the scope of his power and authority, provided the investment was made in the exercise of a sound discretion with a view to their benefit and the advancement of their interest; for this is required by the terms, which require him to use it for them. It is
The seventh clause of the will tends, I think, to confirm this construction of the previous clauses. It gives to his surviving children, if one of them should die without an heir of his or her body, “whatever may-then be left” of what he or she received from his estate, to be equally divided among them, “ with such restrictions in regard to my daughters that may be entitled to a portion, as hereinbefore provided.” This is the third time that the testator in his will enjoins these restrictions upon the gift to his daughters, shouting how important he regarded them. And that he
But if it implies that the daughter might use a part <of the principal, with the assent of the trustee in his discretion, it implies that it was not intended that she should use the whole of it, and what might remain is not left to her disposal, but the will disposes of it, and it is a limitation upon her right of property, and to that extent it is a contingent right. It is not in conflict with the construction given to the previous clauses, but supports it, and should be read in connection wfith them.
It is a familiar rule in the construction of wills, that '“ all the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but when several parts are absolutely irreconcilable, the latter must prevail.” (Mr. Jarman’s seventh rule of construction, approved by Redfield on "Wills, 1 vol. 426, 427.) And this court held, in a recent case (Bank of Greensboro’ v. Chalmers, 80 Gratt. 202; that “in the construction of every instrument, the paramount rule is, so to construe it as, if possible, to give effect to every part of it; and in order to discover the intention of the parties, we look not only to the terms of the instrument, but to the subject matter
There are various and a contrariety of decisions on this subject. In Virginia the current of decisions have been to the effect, that a married woman, as to her separate estate, may act as a feme sole, and has the power of disposing of the same; unless she has been restricted by the instrument of settlement. In Burnett and wife v. Hawpe’s ex’or, 25 Gratt. 481, Judge Staples, whilst recognizing this as the established rule in Virginia, says: “ If the question was res integra, it would be a matter of grave consideration, whether it would not better accord with justice, humanity, and the intention of the parties, to hold with Chancellor Kent, that the right of a married woman to dispose of, or encumber her separate estate, is not absolute, but only sub modo to the extent of the power given her by the instrument creating the estate. The doctrine of the courts as now expounded, while protecting the wife against the debts of the husband, leaves her helpless and exposed, not only to her generous impulses in his favor, but to his secret influences, as difficult to be resisted as they are to be detected.” Whilst it seems to me the foregoing should commend itself to every generous mind, I am obliged to agree with him, that the opposite rule seems to be too firmly established in Virginia, now, to be called in question, and that the wife may exercise the jus disponendi as to her separate estate, as a feme sole, unless restricted by the instrument which invests her with the estate.
Those restrictions need not be in express terms. But if the exercise of the power to incumber or alien the separate estate, be inconsistent with the scheme of
It is true that the mere appointment of a trustee will not be sufficient to show such intention. But Addison Maupin, by his will, required the property he gave his daughters, which would be in money, to be placed in the hands of a responsible trustee, who would be a friend of MS’ daughter, whom he invested, in effect, with such powers and discretion as to the management and disposal of it for her, as I have shown, would be incompatible with either his daughter, or her husband, having the possession or disposal of it. And that was the scheme of his settlement on her; and it was his intention, pervading the whole instrument, so far as it effects his daughters. And this conclusion excludes the right of the daughter to encumber or alien her property. "Whether she could do it with the consent of the trustee is another question, upon which we deem it unnecessary to express an opinion. Certainly she could not, without the concurrence of her trustee. She would be entitled to receive the income regularly from her trustee. And he might permit her, if necessary for her support, to draw upon the principal.
Upon the foregoing views, it is obvious that the deed in which Mrs. Jones united with her husband—conveying all her interest in her father’s estate to the
There is another view of this case which may be briefly presented. When this deed was made, no part ProPei’fy was in the possession of the husband, or wife. Upon the division, Mrs. Jones was entitled to the one-fifth part of it, which, by the terms of the will, was not to be made until the death of her mother, who was still living, and in possession of the estate, as she had been since the death of her husband. Any right which Mrs. Jones had to any part of the estate, when the division took place, was contingent. If she should die before that event, without an heir of her body, she took nothing; but the portion bequeathed to her would go, by the express terms of the will, to her surviving sister and brothers. She may have had issue at the date of the deed, hut that does not appear. At the date of her petition, it does appear that she had two children. But she may survive her children, and afterwards die without an heir of her body, and before the event occurs, upon the happening of which the division of the estate was to be made, under the will. In that ease no interest could ever vest in her, in possession. If she is living when the division, by the requirement of the will, is made, she could not take possession of her share of the estate. The executor could not pay it to her, but could only pay it to her trustee, to be used or administered for her by him. And a payment to her by the executor, and her receipt, would be no discharge to him. Consequently, a payment by the executor to the trustee of her husband’s creditors, and his receipt therefor, a fortiori, could be no discharge to him.
"We are of opinion, therefore, to affirm the decree of the circuit court rejecting and dismissing the petition of L. D. Haymond, trustee, with costs.
Staples, J., concurred in the results of Judge Anderson’s opinion.