General Principles as to Liability for Involuntary Alienation 8 593. The separate equitable estate of a married woman is not liable to involuntary alienation. The reason given by Ashman, J., in Hartley's Estate, it is submitted, does not touch the real point in the case. The exemption from invol held that a conveyance by her and her husband, though not referring to the power, passed the estate. For a case of power to appoint by deed and exercise thereof, see Scott v. Bryan, 194 Pa. 41 (1899). Power to mortgage: Power to execute a deed does not give the power to execute a bond and mortgage; Dorrance v. Scott, 3 Wh. 309 (1838). Direction to the trustee to pay the income to the use, etc., and disposal of the cestui que trust, does not give her power to mortgage the corpus; Cochran v. O'Hern, 4 W. & S. 95 (1842). In Bailey v. Allegheny Nat'l Bank, 104 Pa. 425 (1883), there was a gift in trust "that no one of the husbands, etc. of my children shall have any interest in *** the property bequeathed, but that the shares of my said children shall belong to them separately and exclusively, whose receipts therefor shall be taken as a full discharge." It was held, without any discussion, that a sole and separate use was created, and that the words quoted gave a married cestui que trust power to mortgage, on the ground, in the court below, that a general power of disposition was given by implication by the use of the words "separately and exclusively," citing Chrisman v. Wagoner, 9 Pa. 473 (1848). The mortgage here was of all her right, title and interest and probably referred to her equitable interest, and therefore squarely raises the point. See remarks of Brown, J., on this case in Holliday v. Hively, 198 Pa. 335 (1901), at 342. Power to revoke: In the case of Chrisman v. Wagoner, 9 Pa. 473 (1848), there was a power to appoint by will, with a limitation over if the cestui que trust died without having withdrawn and without making an appointment or disposition thereof, and held that the cestui que trust had power to withdraw the principal of the fund during coverture. In Withington's App., 32 Pa. 419 (1859), real estate was conveyed to the separate use of the wife on the eve of marriage, with power in her to appoint by will if she died before her husband. There was a covenant in the deed, which was signed by her husband, that the husband would not oppose any revocation of the trust by the wife, either by deed or will. Held, that the language of this covenant did not increase the powers previously given to the wife and, therefore, a revocation executed by her by deed in her lifetime was void. 8 In Wallace v. Coston, 9 Watts, 137 (1839), an action was brought against the feme covert to recover for necessaries furnished, as the plaintiff alleged, on the faith of the pledge of her separate equitable estate. While there was a doubt whether she had pledged her separate estate, the court said that she had no power to assign her separate estate since she had no express power under the deed of trust and judgment was given against the plaintiff. It seems, however, that the plaintiff could have recovered anyhow, and the only question was whether he could satisfy his judgment out of the separate estate. See also Crowe v. Lippincott, 38 Pitts. L. J. O. S. 433 (1891). 913 Phila. 392 (1880). "Creditors do not lend to a married woman credit upon the assumption that she is the owner of property in her own right, but content themselves to trusting to the solvency of her husband. They cannot, therefore, be injured by the upholding of a trust for her benefit which ties up no property upon which they can fasten a liability." untary alienation flows from the nature of the estate itself, and is allowed on grounds of public policy. The state of mind of the creditor of a married woman has nothing to do with the case. Hays's Estate 594. In Hays's Estate 10 the reasoning of the court is very unsatisfactory. The words of the trust were, "for their sole and separate use, and shall be paid into their own hands respectively upon their own sole and separate receipt therefor." The accrued income in the hands of the trustees was attached under a judgment against one of the cestuis que trustent. The court below dismissed the claim of the creditor and its decision was affirmed by the Supreme Court on appeal, in an opinion by Mestrezat, J. As far as can be gathered the court denied the validity of the attachment on the ground that as, under the terms of the trust, it was the duty of the trustee to pay the income into the hands of the cestui que trust, he had not fulfilled his obligations until that was done, and, therefore, no third party could interfere with him in the performance of his duty. The learned judge said," "To hold that the duty of the trustee ceases when he has possession of the income, ignores one of the duties clearly and distinctly imposed on him by the terms of the trust." The court, it is submitted, went too far. The trust being a sole and separate use was, without the words "into their own hands respectively upon their separate receipt," exempt from the debts of the cestui que trust.' And to base the decision on that ground leaves it open to acute counsel to suggest that the exemption of the income in a married woman's trust from the debts of the cestui que trust depends upon such a clause. Until the Supreme Court has had an opportunity to consider this question again, it would, perhaps, be safer to insert this clause in married women's settlements.2 10 201 Pa. 391 (1902). 11 At p. 396. 1 The unfortunate nature of this language has been illustrated by the necessity the Superior Court felt in Kunkel v. Kemper, 32 Super. Ct. 360 at 364 (1907), of pointing out that the language was to be limited to the facts of the case. 2 It is believed that the court in this case was misled by the argument of the counsel for the appellant. There was no clause against anticipation in the will, and it was totally unnecessary to base the decision on any question of construction as to whether the language of the testator imposed such a restriction on the cestui que trust. The creation of a sole and separate use was sufficient. Effect of the Clause as to Involuntary Alienation When the Trust is Created by the Woman Herself 4 In 595. Does the clause protect the equitable estate from liability for the debts of the woman when she creates the trust herself? In Stewart v. Madden the court expressly refused to pass on the question as unnecessary to the decision of the case, and the point is therefore open in Pennsylvania. Ghormley v. Smith an unmarried woman not in contemplation of marriage made a settlement to her sole and separate use, and it was held that the trust was no protection from her creditors during a subsequent marriage, as the sole and separate use clause was void in the beginning. The case presented was that of an ordinary trust and consequently liable for the debts of the settlor.8 9 Clause Against Anticipation 596. The clause against anticipation was first invented by Lord Thurlow and grew into favor as a means of restraining the uncontrolled power of a feme covert over her separate estate, which power 10 seemed to be the necessary consequence of freeing her property from her husband's control. The clause, as originally worded, was "and not by anticipation," the effect of which was to prevent the feme cestui que trust from disposing of her equitable estate. The clause, although frequently inserted, is entirely unnecessary in Pennsylvania,3 as the feme cestui que trust has no powers instrument creating the trust.* except those granted in the It is a vain thing to forbid text writers do not state. She could not, under the clause, ask for income before it was due her. An assignment by her gave the assignee power to collect the future income, and the assignment was probably, for this reason, considered as an indirect anticipation. For a discussion of the clause from the English point of view, see the opinion of the court below in the case of Dubs v. Dubs, 31 Pa. 149 at 152 (1858). See Gray, Restraints on Alien., 2 ed. (1895), §270, and cases cited. 3 See the opinion in Crowe v. Lippincott, 38 Pitts. Law Journal, 433 O. S. (1891), Ferguson, J., in Shanty's Est., 7 Pa. C. C. 199 at 200 (1888). 4 See §588, ante. her to do that which she has no power to do. The doctrine discussed by Mr. Gray, that the clause against anticipation is to be disregarded when it violates the rule against perpetuities, is inapplicable in Pennsylvania, as a married woman's trust cannot be created except for a living person, and the clause against anticipation, therefore, can never violate the rule." King's Estate 7 597. In King's Estate there was an attempt to create a sole and separate use which failed. There was also inserted in the settlement a clause against anticipation. The trustee advanced income to the cestui que trust before it had been paid to him, and, in consequence, as there was an overpayment, was compelled at the audit to claim a credit for that amount, to which state of affairs the clause against anticipation could have no application. The credit was allowed. Strangely enough, however, the attention of the court seems to have been chiefly directed to the clause against anticipation, no question as to which was properly before them. On appeal, the decree was affirmed by the Supreme Court, Green, J., saying: "The cestui que trust has actually received the payments made in perfect good faith by the trustee, and she was as much in fault in violating the clause against anticipation as the trustee was in making payments. She has therefore no equity to be heard against her own wrongdoing."9 Effect of the Clause of Sole and Separate Use on the Power and Control of the Husband 599. The effect of the sole and separate use clause in freeing the estate of the married woman cestui que trust from the control and debts of her husband is so clear that it has apparently never been questioned.1o 5 Restraints on Alien., 2 ed. (1895), §§272-272g. As to the clause against anticipation in spendthrift trusts, see §280, ante, Gray, Restraints on Alien., 2 ed. (1895), §272g. 7 147 Pa. 410 (1892). 8 At p. 414. 9 These remarks, which were plainly dicta, are totally opposed to the law in England, where the cases are clear that the trus tee cannot take refuge in the connivance of the cestui que trust in evading the clause; Gray, Restraints on Alien., 2 ed. (1895), §271, and cases cited. See language of Woodward, J., in Lowrie's App., 1 Grant's Cases, 373 at 376 (1856). 10 Not liable for judgment for joint tort of husband and wife: Pullen v. Rianhard, 1 Whart. 514 (1836). Not liable for husband's debts even when in actual posses English Chancery Doctrine as to Right of the Husband in the Sole Pennsylvania Law as to Right of the Husband in the Sole and 601. The law in Pennsylvania is now well settled the other sion of the husband and wife: Yardley v. Raub, 5 Whart. 117 (1840). The principle would be different when he carries on the trade with the separate property or his possession is inconsistent with the deed of trust: Sergeant, J., in Yardley v. Raub, 5 Whart. 117 at 124 (1840). Real estate, the legal title to which was vested in the husband and wife, to the sole and separate use of the wife, not liable for debts of the husband: Lichty v. Hager, 13 Pa. 565 (1850). Trustees under such a settlement justified in refusing to pay any part of the trust funds to the husband on the wife's order: Lowrie's App., 1 Grant's Cases, 373 (1856). If she has power to mortgage she may make a mortgage for the benefit of her husband: Hoover v. Samaritan Society, 4 Whart. 445 (1839). 1 1 Lewin, Trusts, 8 ed. (1888) Vol. 2, p. 735, and cases cited. Opinion of Rogers, J., in Cochran v. O'Hern, 4 W. & S. 95 (1842). The doctrine was based upon two grounds: (1) on want of seisin in the wife during coverture, the legal estate being in the trustees; (2) on the intention of the donor that the rights of the husband should be excluded. After much fluctuation the rule was settled the other way, and the husband became entitled. Lewin, ubi supra, p. 735. There are two reasons for the 2 Cochran v. O'Hern, 4 W. & S. 95(1842); Stokes v. McKibbin, 13 Pa. 267 (1850), Gibson, C. J., at p. 268 making the question turn entirely on the intention of the donor; Rigler v. Cloud, 14 Pa. 361 (1850), going on the ground of intention as disclosed in the settlement. The clause was as follows: "not to be in any way liable to the future control, debts or liabilities of her present or any future husband." Ash v. Ash, 1 Phila. 176 (1851); Freyvogle v. Hughes, 56 Pa. 228 (1867), semble. It will be observed that this is another case where equity does not follow the law. 3 In Dubs v. Dubs, 31 Pa. 149 (1858), the woman was not in contemplation of marriage when the trust was created. The court below said that there was a sole and separate use, and the husband was not entitled to curtesy therein, relying on the English doctrine. Reversed, on appeal, the Supreme Court not noticing that there was no sole and separate use under the Pennsylvania law. Ege v Medlar, 82 Pa. 86 (1876), going on the ground that the question was one of intention, but that no intention to exclude was to be found in the settlement. Rank v. Rank, 120 Pa. 191 (1888); Carson v. Fuhs, 131 Pa. 256 (1889), dictum; Johnson v. Fritz, 44 Pa. 449 (1863), right recog |