the will, against one claiming under a deed executed by the cestui que trust and her husband. Held, that the deed was void, as the cestui que trust had only a life estate, and also because the trust was a sole and separate use. As to this point, Agnew, J., said by way of dictum: "As remarked in Wells v. McCall the creation of the trust constitutes the evidence of the fact of the marriage being in the contemplation of the devisor, and this being followed in so short a time by the consummation of the marriage, concludes the proof."" Pennsylvania Law as to Contemplation by the Donor 5 577. It thus appears that the doctrine as to contemplation by the donor was not even mentioned in the case of McBride v. Smyth, that it appeared by way of dictum in Wells v. McCall, in which case the fact of the contemplation by the testator was set up in the answer, and that in the case of Springer v. Arundel the court followed the dictum in Wells v. McCall without any question or discussion, and that the doctrine has been assumed as law ever since upon the authority of these cases. If the marriage takes place soon enough after the date of the will, there is a presumption that the donor knew of the contemplated marriage. If the marriage takes place long enough after the date of the will there is no presumption that the donor knew of the contemplated marriage. The Supreme Court has never decided exactly what length of time. will constitute the dividing line between the two presumptions. 2 In Eastwick's Est., 13 Phila. 350 (1880), Penrose, J., said that a limitation over in the event of death without issue indicated that the marriage of the cestui que trust was in the mind of the testatrix. As such limitations are present in almost every settlement the inference is perhaps not very strong. 3 54 Pa. 245 (1867); stated §574, ante. 64 Pa. 207 (1870); stated §575, ante. 564 Pa. 218 (1870); stated §576, ante. In the following cases the court held that the time which had elapsed from the date of the will was too long for the presumption to arise, and that there was no trust: twenty-five years, Pickering v. Coates, 10 Phila. 65 (1873); five years, House v. Spear, 1 W. N. C. 34 (1874); 6 seven years, Ogden's App., 70 Pa. 501 (1872); contra, dictum in Page's Est., 75 Pa. 87 (1874); six years, Hetrick v. Addams, 12 W. N. C. 367 (1882); twelve years, Bevan's Est., 15 Phila. 615 (1882); eight years, Neale's App., 104 Pa. 214 (1883), c. q. t. ten years old at date of will; twenty years, Kuntzleman's Est., 136 Pa. 142 (1890), c. q. t. five years old at date of will. In the following cases no time was stated, and it was held that there was no trust: Bristor v. Tasker, 135, Pa. 110 (1890); dictum, in Boyd's Est., No. 1, 199 Pa. 487 (1901); Wolfinger v. Fell, 195 Pa. 12 (1900). The age, therefore, of the beneficiary, or the fact that the marriage took place before or after the death of the testator is immaterial. Objections to the Doctrine That the Donor Must Contemplate the Marriage 578. A sole and separate use is an exception to the rule forbidding restraints on alienation, and the whole object of the Supreme Court in enforcing the doctrine as to contemplation by the donor is to confine that exception within the smallest limits. What can be said in defence of a doctrine which makes the application or non-application of a principle of public policy depend on what was in the mind of a man who is now deceased, and this is what it comes to in the case of wills. The rules which have been laid down by the Supreme Court are merely artificial presumptions to assist in covering up the practical impossibility of carrying out the doctrine. Suppose a young woman is engaged to be married and is suddenly bereft of the parent to whom she is about to disclose her engagement. That parent leaves a will dated one year before his death, creating a sole and separate use for his daughter. The daughter marries six months after her father's death, and although the donor had no knowledge of the engagement, there is, under this presumption, a valid sole and separate use. Suppose, on the other hand, a young woman has disclosed her intended marriage to her father, and he dies having created a sole and separate use by will. The marriage is delayed, for one cause or another, for six or more years after the father's death. The sole and separate use is void under the presumption, and the young woman is likely to have her property swept away by the improvidence and debts of her husband, yet, in this case, the donor knew of the marriage at the time of the creation of the It may be answered that these presumptions may be overthrown by evidence. The evidence is difficult to produce, and no case has been found in which it has been produced. Furthermore, what is contemplation by the donor? How far must the preliminaries between the young people have progressed before the donor can be said to be in sufficient contemplation? A keen-eyed parent may contemplate a specific marriage long before the young woman herself has awakened to the situation. Executory Trusts and Contemplation by the Donor 579. Where the settlor provides by his will that the sole and separate use shall take effect at some time in the future, is the validity of the clause to be considered with reference to 8 the circumstances which may happen to exist at that time or those which exist at the date of the will? This question was raised in Snyder's Appeal. Judge Penrose, in the court below, took the ground that the trust was executory, and that therefore the trustees of the will would have power to complete the trusts at the time fixed, and create a sole and separate use, the requisite circumstances being present at the time. On appeal, the Supreme Court reversed, Mr. Justice Sterrett saying that the case was ruled by McBride v. Smyth. The learned judge also said: "There is practically no distinction between the cases unless we hold that the testator could confer a power upon his executors as trustees, which, according to all our cases, he himself did not possess. If we were to so hold, it would be difficult to forsee the results to which it would lead." It is submitted that the results can easily be foreseen. Any estate taking effect under such power would be governed by the rule against perpetuities, and the rule forbidding restraints on alienation. The decision, however, is a logical result of the principle that the donor must contemplate the requisite circumstances. If these circumstances may or may not exist at some uncertain time in the future after the decease of the donor, they cannot be contemplated by him. Clause of Sole and Separate Use Invalid Upon Second Marriage 581. If a sole and separate use clause attached to an equitable interest is invalid against a woman who is unmarried at the time of the creation of the trust, it is a fortiori 10 invalid against a woman upon her second marriage. In considering 8 92 Pa. 504 (1880). 9 54 Pa. 245 (1867); stated §574, ante. 10 Accordingly, in the following cases it was held that the clause was invalid upon second marriage: Hamersley v. Smith, 4 Whart. 126 (1839); Freyvogle v. Hughes, 56 Pa. 228 (1867); Rea v. Cassel, 13 Phila. 159 (1879); Snyder v. Snyder, 10 Pa. 423 (1849), contra. A reason for this was given by Mr. Chief Justice Agnew in Wells v. McCall, 64 Pa. 207, quoted by Mr. Justice Clark in Quin's Est., 144. Pa. 444 at 456 (1891), as follows: "But a second marriage is evidently a thing not in immediate contemplation, being cut off from view by the uncertainties of a first marriage, the death of the husband, and an intention to marry a second time." This phrase is far from clear. The learned judge probably meant by uncertainties the fact that the first marriage might not terminate. The clause is, however, capable of another construction, and he does not make clear in what connection he considers the intention to marry a second time, whether that is to be entertained during the first marriage or not until afterward. How a second marriage could be shut off from view during the first marriage by an intention to marry a second court has overlooked the material created by the woman herself and this question, however, the 11 Where the Sole and Separate Use Clause Cannot Take Effect but the Trust is Valid on Other Grounds 212 (1894), citing Dunn's App., supra; Hanna, P. J., in Wright's Est., 28 Pa. C. C. 540 at 541 (1903). It is quite common, however to find in Pennsylvania settlements, a clause as to "present or any future husband." Such a phrase seems to be utterly useless. 11 See §605, post. 582. Since the sole and separate use differs from other trusts in which the cestui que trust is a woman, only because of the clause excluding the husband, it follows that when the circumstances under which the clause is valid are absent, the case is to be considered as if the clause had been omitted from the instrument, and the cestui que trust will not be entitled to the legal title if there are other elements of a valid trust.1 time the learned judge does not inform us. Criticism on this point may seem hypercritical, but it is useful as showing the illogical manner in which the Supreme Court has considered this question, and the superficiality of the reasons which have been assigned. There are some expressions, however, which support the view that a trust for a married woman would revive upon second marriage. Thus, in Dunn's App., 85 Pa. 94 (1877), there was a deed of trust by a woman and her husband, to the sole and separate use of the woman. The court held, the woman being dead and having been divorced from her husband a month before she died, that the trust was an active one for her life, and that the trustees were to carry it out under the deed of trust. Mr. Chief Justice Agnew said that she clearly indicated her intention to protect herself against her own acts, as well as those of her present or any future husband. The trust for coverture only falls at the death of the first husband, but this she intended to be carried over to any future husband; and in connection with the provision against her own debts, she disclosed a plain intention to make the trust for life and not for coverture only. The trust in this case having been created by the woman herself would undoubtedly be invalid against a second husband; see §605, post. See also remarks of the court in Forney's Est., 161 Pa. 209 at 1 Harris v. McElroy, 45 Pa. 216 (1863); Yarnall's App., 70 Pa. 335 (1872); Robins v. Quinliven, 79 Pa. 333 (1875); Williams's App., 1st will; 83 Pa. 377 (1877); Forney's Est., 161 Pa. 209 (1894); Seitzinger's Est., 170 Pa. 500 (1895); Noble's Est., 182 Pa. 188 (1897); Boyd's Est., No. 1, 199 Pa. 487 (1901), dictum; Denis's Est., 201 Pa. 616 (1902); see Biddle's Est., 15 Pa. C. C. 401 (1894). It is important to notice in this connection that a distinction may be drawn between the case where the sole and separate use is of a life estate and where it is of fee simple. In the former case the invalidity of the sole and separate use clause will not enable the cestui que trust to terminate the trust; Earp's App., 75 Pa. 119 (1874); Ash's App., 80 Pa. 497 (1876); whereas, in the case of a fee, the termination of a separate use will always entitle the cestui que trust to call for a conveyance; Dodson v. Ball, 60 Pa. 492 (1869); Megargee v. Naglee, 64, Pa. 216 (1870). See, however §524, ante, on a trust of an absolute interest. Preliminary Discussion as to the Effect of the Clause 587. We have now considered the form of the clause which defines a sole and separate use, and ascertained the circumstances which must exist in order that the clause may take effect. It now remains to consider, all these elements being present, what the effect of the clause is, or, as it is sometimes stated, the incidents of the trust. We shall discuss the subject, first, as to the woman cestui que trust and then as to her husband. As to the woman cestui que trust, we shall consider (1) her power to deal with the equitable title; (2) the liability of the same for her debts; (3) the clause against anticipation. As to the husband of the woman cestui que trust, we shall consider (1) his power of control over the equitable title; (2) its liability for his debts, and (3) his rights after the death of the cestui que trust. 2 Preliminary Discussion as to the Effect of the Clause on 3 4 588. A restraint on voluntary alienation when attached to a sole and separate use clause is valid whether the interest is absolute or for life. It is an exception to the general rule, and as such is supported on the principle of public policy having in view the protection of married women. It was for a long time uncertain whether the restraint must be expressly inserted in the trust. If the legal title to the wife's property was vested in a trustee, the husband's rights at law were effectually excluded. If the trustee were directed to hold the estate solely for the benefit of the wife, without the interference of her husband, he could, in equity, recognize no one but the wife as the owner, as the chancellor enforced the trust according to the wish of the donor. Therefore, as to her equitable separate estate, the wife was in the same position as a feme sole. The only effect of the marriage was to subject her title to the husband's control, and, therefore, when freed from that control she should, on principle, have all powers which were not expressly denied her in the instrument creating the trust. The obvious danger to the married woman, 2 That is the question that will be viewed from the standpoint of the distinction between voluntary and involuntary alienation. 3 Gray, Restraints on Alien., 2 ed. (1895), §269, et seq. 4 Gray, Restraints on Alien., 2 ed. (1895), 88140-142. |