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upon which it is founded. Where a woman contracts with her husband on the eve of marriage for the enjoyment of her estate to her sole and separate use, it is plain that the arrangement is valid only for that particular marriage, is terminable by the woman upon subsequent discoverture; and is invalid as against a subsequent husband, for it is clear that a man who marries a widow cannot be deprived of his marital rights because of a settlement which she may have made with a previous husband, and it is also plain that such a settlement is valid only when made in contemplation of a particular marriage, for the consent of the intended husband is necessary. Where, however, the sole and separate use is created by a third person the case is different. All that the woman receives is an equitable separate estate which, when it comes into her hands, is held free from the control of her husband. While, therefore, she may, so long as she remains single and if she has the entire interest, put an end to the trust, as it is a restraint upon her power of free alienation, yet so long as she does not terminate it the trust remains, and so long as it remains it must remain in its entirety. When, therefore, she marries with the trust in force, the husband takes her with the estate as she had it, and her power to terminate ceases during the marriage for the reason that she has thus voluntarily brought herself within the incapacity contemplated by the trust, and there is no more reason for holding the trust invalid in such a case than there is a trust newly created while she is married. It seems, therefore, as if the doctrine as to contemplation of marriage by the donor and the doctrine that the trust is terminable upon discoverture and does not revive upon a second marriage, were borrowed from the first method of creating a trust, and were then applied indiscriminately to all cases of a sole and separate use. This confusion appears to have crept into the Pennsylvania law under a misapprehension as to some early dicta and without the question ever having been argued or discussed. The cases

3 See Freyvogle v. Hughes, 56 Pa. 228 (1867); see $590, n. 10, ante

If the married woman's property acts have divested the rights of the husband during coverture, it is difficult to see why the feme sole cannot make a settlement to her sole and separate use which will be valid during the marriage against a future

are as follows:

husband. The invalidity as to such a husband before the acts depended on the fact that it deprived him of his marital rights during her lifetime, and since it no longer does so, as he has no rights, why has he any standing to complain? See Belt v. Ferguson, 3 Grant's Cases, 289 (1859), where, however, the point was not discussed.

Smith v. Starr

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606. In Smith v. Starr the husband was dead and the widow had agreed to convey. The court said that the continuance of the trust after the death of the husband was a void restraint on her power of disposition of the fee; that the deed was an act of disposition by her. The subject matter being real estate, there is room to argue that the statute executed the use. Rogers, J., said, speaking of the doctrine that a trust could not be created for a feme sole unless she was in immediate contemplation of marriage, "But this doctrine would impose an unreasonable restriction upon the power of parents to provide for the future support of their daughters, and is not, as I conceive the law, as applicable to this state."7

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Hamersley v. Smith

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607. In the case of Hamersley v. Smith the fund consisted of personal property, and the cestui que trust became discovert and married again. Gibson, C. J., in his opinion, after referring to the fact that an agreement for a separate use lasted only during the particular marriage because founded on the consent of the husband, came to the conclusion that the same rule applied to the case at hand, without, it is believed, clearly apprehending that the case before him was a gift from a third person. It is also submitted that the

5 3 Whart. 62 (1838).

6 See §129, ante.

7 At p. 66. This remark of the learned judge was misunderstood by Agnew, J., in Wells v. McCall, 64 Pa. 207 at 213 (1870), where he said, "But on all hands it is admitted that the entire freedom of disposition would impose an unreasonable restriction upon the power of a parent (or indeed any other benefactor) to provide for the future support of a daughter. And Rogers, J., says precisely this in Smith v. Starr." Freedom of disposition in this sentence must mean freedom on the part of the cestui que trust, otherwise it is nonsense, and if it means freedom on the part of the donor it is not much better, as he can restrain or not, as he thinks best.

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Another instance of this confusion is furnished by the decree in Ash's App., 80 Pa. 497 (1876). In that case an unmarried woman executed a deed of trust of her property in April, 1856. She married in April, 1857. In 1873 she and her husband filed a bill against the trustees, under the deed, to have the trust terminated. The bill set out that the plaintiff was not contemplating marriage when she executed the deed. The answer of the trustees admitted that fact. Paxson, J., in the court below, considered this admission as of no weight, citing Wells v. McCall, 64 Pa. 207 (1870), $432, ante, without observing that that was a case of a settlement by a third person. On appeal, the Supreme Court affirmed, placing the decision, however, on the ground that the trust was ac

learned judge misunderstood the case of Massey v. Parker.10 He said that that case decided that the gift of a separate use to an unmarried woman was impracticable. On the contrary, the case simply decided that the clause against anticipation attached to a married woman's trust could be disregarded by her when she she was not married. Since in England she has all the powers which are not denied her, it is apparent that in that jurisdiction to disregard the clause against anticipation does not destroy the trust. In Pennsylvania, however, where she has only those powers given to her in the instrument creating the trust, it is a far cry from the decision in Massey v. Parker to say that merely because the woman becomes discovert the whole trust falls to the ground. The learned judge also relied on the case of Smith v. Starr, overlooking the fact that that was a use of real estate executed by the statute of uses.

Reasons Assigned by the Supreme Court

608. A number of reasons have been assigned by the Supreme Court for this doctrine. (1) "Perhaps a reason for the fall of this kind of trust is that the donor having expressed coverture as its purpose, no other intent is presumed."'1

tive and the remainders legal, and therefore the cestui que trust was not entitled to the legal title.

10 Massey v. Parker 2 M. & K. 174(1834). The dictum in this case is very obscurely worded, but seems to go only to the point that a restraint upon alienation is invalid as against the subsequently taken husband of the cestui que trust. The court said that as the woman while sole could disregard the restraint, there can be no reason why she could not give it to her husband by the act of marriage. It may also be gathered from the opinion of Lord Cottenham in Tullet v. Armstrong, 4 Myl. & Cr. 377 at 399, 400 (1840), B. c; 1 Beav. 1 (1838), that the point really involved in the dictum of Massey v. Parker was that the restraint against anticipation was invalid only during subsequent coverture. In Tullet v. Armstrong a testator gave property to trustees in trust for his

wife for life, with the remainder to M. A. T., then a feme sole, without anticipation and free from the control of her husband. M. A. T. was unmarried on the date of the death of the testator, but married in the lifetime of the widow. Held, that the separate use clause and restraint against alienation became effective at her marriage, the Master of the Rolls, Lord Langdale, pointing out on p. 29 the dictum in the case of Massey v. Parker. 1 Agnew, C. J., in Earp's App., 75 Pa. 119 at 125 (1874). The learned judge probably had in mind the operation of the statute of uses. See $129, ante. Contrast this language with that of the same judge in Wells v. McCall, 64 Pa. 207 at 213, where he evidently makes the trust fall because it is itself a restraint on alienation, which restraint can only be imposed so long as the necessity exists.

(2) That when the marriage is known, the donor has the data upon which to base an intelligent judgment as to the propriety of creating the trust. This reason, it is submitted, loses its force when it is remembered that the trust has for its object the protection of the woman against the uncertainties which attend every marriage, however auspicious. (3) That as the sole and separate estate is one in which the cestui que trust has no powers except those granted, it is necessary to restrict the persons for whom such an estate may be created, for if the estate could be settled upon every single woman, the free alienation of property and the transmission of title would thereby be most seriously embarrassed. This reason, however, is of no weight when assigned in a jurisdiction like Pennsylvania, where, if anywhere, the restrictions upon alienation which may be created are allowed to the greatest extent, and is inconsistent with that assigned by Mr. Chief Justice Gibson.*

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2 Sterrett, J., in Snyder's App., 92 Pa. 504 at 509 (1880).

3 Clark, J., in Quin's Est., 144 Pa. 444 at 455 (1891).

4 There appears to be no discussion in the books at the time the doctrine was established as to the reason why the woman should be married or in contemplation of

marriage except in the opinion of Smyser, P. J., in the court below, in Dubs v. Dubs, 31 Pa. 149 at 151 (1858). In that case the Supreme Court seemed to think that the other view was the English view, and, for that reason alone, viewed it with disfavor.

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Contingent gift depending on the accumulation, how limited §620

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General distinction between English and Pennsylvania acts §624
The Pennsylvania act examined in general.

$625

The act considered in connection with the rule forbidding

restraints on alienation.....

3626

The act considered in connection with the rule against per

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