shall inure to them free from any and all liabilities of the debts of any husband either of them may now have or hereafter take and likewise free from the control of such husband." The court in an opinion by Brown, J., held that the daughter had an estate in fee simple which she could convey free from the trust, as the words in the codicil were not sufficient to create a sole and separate use. The court supported the decision on several grounds which will be taken up separately. (1) That the words of the codicil excluding the right of the husband were mere surplusage and only reiterated the legal effect of the Act of 1848, there being no trust created. The objection to this is that it goes back to the fallacy of Haines v. Ellis and entirely ignores the well-considered decisions in MacConnell v. Lindsay and Holliday v. Hively,' which overruled Haines v. Ellis. The learned judge distinguished Keating v. McAdoo and Lewis v. Bryce on the ground that the remarks of the court in those cases as to the sole and separate use were dicta. That is correct, but the dicta were in accordance with the decisions in MacConnell v. Lindsay and Holliday v. Hively, neither of which cases were distinguished by the court. The learned judge also said, "If his (testator's) intention to lessen the absolute estate to a separate use and to deprive his daughter of the power of alienation could be gathered from other portions of his will, we might hold that the words in the codicil are appropriate and sufficient for that purpose. But no such intention appears, and the words, standing alone, have no other effect than to repeat the testator's intention to give his daughter a seventh interest in his estate, to her, 'her heirs and assigns forever.' It is submit

8

9

"10

trust. The reporter understood the language evidently in a totally improper sense, for in the syllabus he reported the case as deciding that the fee simple estate was not cut down to a separate use trust by the codicil. If a fee simple estate is granted it may be subject to a sole and separate use, but to say that it is cut down is far from accurate. It is believed that the learned judge misunderstood the opinion of the court in Keating v. McAdoo, 180 Pa. 5 (1897). There was in that case a question, first, as to what estate the devisee took, whether for life or in fee, and to arrive at the answer

ted, however, that it is just as reasonable to infer that the testator made his will having in mind the law under the Act of 1848. which is that the legal estate of a married woman is free from the debts and control of her husband, and that therefore the particular words were put in with the specific purpose of protecting her from the control of her husband. It is immaterial, also, whether the testator intended to give his daughter the power of alienation or not, for the intention of the testator to deprive her of that power is of no weight, as the incapacity to alienate flows from the separate use without any expression to that effect. It may further be observed that the testator might easily have conferred the power of alienation, and, at the time same, have created a sole and separate use. This case leaves the law in great uncertainty.2

1

View That the Act of 1848 Did Not Change the Law as to the Language Necessary to Create

566. The other view is that the Act of 1848 did not change the rules of construction that had had theretofore obtained; that the same words would raise a separate use after the act as before, the construction of such words being wellsettled rules of property, and that the equitable and legal separate estates exist side by side, each independent and exclusive of the other. It is believed that this view is sustained by reason and the weight of authority.3

to that question the court considered the limitations in the will and said that the subsequent words of limitation were not such as to cut down the fee to a life estate, and then, in a subsequent paragraph, went on to say that the words of separate use were, under the terms of the will, to be confined to the personal estate, and were not applicable to the real estate. It is submitted, therefore, that it is a misunderstanding of the case of Keating v. McAdoo to suppose that it decided that a fee simple estate could be cut down because of a superimposed trust for the separate use of the beneficiary.

1 See §587, post.

2 See Chadwick v. Stroud, 27 Pa. C. C. 393 (1902), accord.

3 See remarks of Mr. Justice Clark in

MacConnell v. Lindsay, 131 Pa. 476 (1889), at 491: "But if it be true as we have already shown that these acts relate only to estates created by and existing under the law, and have no reference whatever to the separate equitable estate of a married woman, we cannot see how the language of these acts can in any way be applied in the construction of instruments which, under the numerous decisions of this court, have been held to create a separate estate recognized only in equity. We cannot say that what was a trust before is a trust no longer, or make that a legal estate which, according to a wellestablished rule of property, has always heretofore been held to be an equitable separate estate only." At 492: "It is immaterial that no trustee was appointed,

Law as to the Language Necessary to Create the Sole and Separate Use

568. The following proposition may be ventured: any words which indicate an intention to exclude the rights of the husband are sufficient to create a sole and separate use; and the failure to name a trustee or absence of active duties is immaterial. The Acts of 1848, 1887, 1893 and 1897 simply remove certain common law disabilities which attached to the married woman's legal title, and do not affect the question, which proposition is rendered doubtful only by the case of Murray v. Lowrie, which doubt is to the effect that the appointment of a trustee and the naming of active duties are necessary in order to distinguish the trust from the estate existing under the Act of 1848.5 We have discussed the form

for equity will supply a trustee, nor is it of any consequence that no active duties were imposed, for the creation and existence of a separate use is, in equity, sufficient to support the trust against the effect of the statute of uses. No particular words have ever been held essential or indispensable for this purpose; it is enough that the expression of the conveyance should be such as to clearly indicate the intention of the donor."

208 Pa. 1 (1904), and Chadwick v. Stroud, 27 Pa. C. C. 393 (1902).

5 In these cases arising since the Act of 1848, decided without reference to the act, it was held that there was no sole and separate use: Conveyance to a trustee in trust for A. during her natural life and at her decease to her heirs in fee, share and share alike, and in the meantime to allow and permit her to receive for her own use the rents and issues thereof, subject to the taxes and costs of executing said trust; Carson v. Fuhs, 131 Pa. 256 (1889), dictum; Jamison v. Brady, 6 S. & R. 466 (1821), contra. Share of A. to be held in trust, to be invested and the interest paid to A. for life and at her death to her daughter C.; Sharpless' Est., 151 Pa. 214 (1892). Gift of residue to daughter absolutely in fee simple, "and it is my will that the said (daughter) shall take and hold the

property hereby given to her, free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her own use and benefit, and subject to her own control;" MacConnell v. Wright, 150 Pa. 275 (1892); extreme case decided upon extrinsic facts as to the propriety of the admission, of which there is grave doubt; overruling MacConnell v. Lindsay, 131 Pa. 476, (1889); arising on the same will. "For the use of the said Isabella, wife of the said Stewart, to allow her to receive to her own use the rents and issues;” Carson v. Fuhs, 131 Pa. 256 (1889).

In the following cases arising since the Act of 1848 the words indicated were held sufficient to create a valid sole and separate use: "It is also my will that the property hereby bequeathed to my said four nieces for their sole and separate use, shall be free from all liabilities, for the debts and contracts or other engagements of any husband or husbands, each or any of them has, or may at any future time have;" Wright v. Brown, 44 Pa. 224 (1863). "To my daughter Ann, the wife of C., and I will and bequeath one share to the sole and separate use of her and her lawful heirs, so that my daughter Ann cannot sell or convey the same, but to descend to