Frances Rebecca Hamilton v. Grace Abbie Rathbone, 6

Citation175 U.S. 414,20 S.Ct. 155,44 L.Ed. 219
Decision Date15 April 1898
Docket NumberNo. 6,6
PartiesFRANCES REBECCA HAMILTON, Plff. in Err. , v. GRACE ABBIE B. RATHBONE
CourtUnited States Supreme Court

This was an action of ejectment brought in the supreme court of the District of Columbia by Grace Abbie B. Rathbone as plaintiff, against Frances Rebecca Hamilton, defendant, to recover an undivided one-third interest in a parcel of land of which the defendant Hamilton was then in possession.

The common source of title was one Abram Elkin, who received his deed on July 31, 1867. He was married to Lucy V. Elkin, April 15, 1863.

The plaintiff's chain of title was as follows: Deed from Abram Elkin and wife to Fred. G. Calvert, April 29, 1872; deed of same date by Fred. G. Calvert and wife to Lucy V. Elkin. These deeds were evidently given to avoid a direct conveyance from husband and wife. Both deeds ran to the grantee, 'his (or her) heirs and assigns, to and for his (or her) and their sole use, benefit, and behoof forever.'

Lucy V. Elkin died May 3, 1876, leaving her husband, Abram Elkin, and four children: (1) Grace, the plaintiff, subsequently married to Rathbone; (2) Lucy Caroline; (3) Charles Calvert; (4) Harry Lowry, who died in 1885 at the age of nine or ten years.

Abram Elkin disappeared in June, 1876, and has not been heard of since.

Plaintiff sues for an undivided one-third interest as one of the heirs at law of her mother.

Defendant's chain of title was as follows: Lucy V. Elkin, who died May 3, 1876, leaving a will by which she appointed Fred. G. Calvert, her brother, her sole executor. She directed that all her property, real and personal, should be sold, and gave her husband $1,000 out of the proceeds of the sale, directing that the residue of such proceeds, after the payment of funeral and other necessary expenses, should be divided equally between her four children. Calvert duly qualified as executor.

In February, 1879, as such executor, Calvert sold the land in controversy to the defendant Frances Rebecca Hamilton, and conveyed it to her by a deed (February 20) which recited that the sale had been made under the power conferred upon him by the will.

A plea of not guilty having been interposed, the case was tried in the supreme court of the District by a jury, and a verdict directed for the defendant. On appeal to the court of appeals from the judgment entered upon the verdict so rendered, that court set aside the verdict and remanded the case for a new trial. Rathbone v. Hamilton, 4 App. D. C. 475.

A second trial was had, and the jury instructed to return a verdict for the plaintiff. From the judgment entered upon this verdict, the defendant appealed to the court of appeals, which affirmed the judgment. Hamilton v. Rathbone, 9 App. D. C. 48. Whereupon defendant Hamilton sued out a writ of error from this court.

Messrs. A. S. Worthington and A. A. Lipscomb for plaintiff in error.

Messrs. M. J. Colbert and H. G. Milans for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

Plaintiff brings ejectment as one of the heirs at law, namely, the eldest of three children, of her mother Lucy V. Elkin, who died May 3, 1876. Defendant relies upon a purchase made by her from the executor of Mrs. Elkin's will. To establish her title, then, plaintiff is bound to show that the property did not pass under the will of her mother, but descended to her heirs at law. The question whether it did so pass depends upon the construction given to certain acts of Congress then in force, relative to estates of married women.

By the act of April 10, 1869 (16 Stat. at L. 45, chap. 23), it was enacted:

'That in the District of Columbia the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were feme sole, and shall not be subject to the disposal of her husband, nor be liable for his debts; but such married woman may convey, devise, and bequeath the same, or any interest therein, in the same manner and with like effect as if she were unmarried.

'Sec. 2. And be it further enacted, That any married woman may contract, and sue and be sued in her own name, in all matters having relation to her sole and separate property, in the same manner as if she were unmarried; but neither her husband nor his property shall be bound by any such contract, nor liable for any recovery against her in any such suit, but judgment may be enforced by execution against her sole and separate estate in the same manner as if she were sole.'

Under the first section, the right of a married woman to dispose of her property as if she were a feme sole does not apply to property acquired by gift of conveyance from her husband. Did the case rest here, there could be no doubt that Mrs. Elkin took this property from her husband subject to such disabilities as were imposed upon married women by the common law, except so far as the same may have been modified by the statutes of Maryland then in force (Sykes v. Chadwick, 18 Wall. 141, 21 L. ed. 824), and the fact that she took title through her brother, Fred. G. Calvert, as an intermediary grantee, did not affect the question. Cammack v. Carpenter, 3 App. D. C. 219. The deeds from Abram Elkin to Calvert, and from Calvert to Lucy V. Elkin, were made upon the same day, recorded at the same hour of the same day, and both were for the same nominal consideration of $5. Add to this the fact that Calvert was the brother of Mrs. Elkin, and the inference is irresistible that it was intended as a transfer from husband to wife. We concur in the opinion of the court of appeals that 'assuming the facts to exist as they are stated in the record, there is no escape from the conclusion that the property was acquired by gift or conveyance from the husband, though it was through the brother of the wife of the grantor as mere medium of transfer of title. There is no attempt to show that there was any real pecuniary consideration for the deeds, and the consideration stated in them is purely of a nominal character; and all the facts attending the transaction show beyond doubt that the real purpose and design of the husband was to transfer from himself to his wife the title to the property. The passing the title through a third party in no manner changed the effect of the transfer. Though the agency of a third party was employed, it was no less, in legal effect and contemplation, a gift or conveyance from the husband to the wife.'

Whether under the common law she held this property as her separate estate, with power to devise or otherwise dispose of it, as if she were a feme sole, is a question which does not arise in view of the statutes then existing, which we think control the case.

In the revision of the statutes applicable to the District of Columbia (passed in 1874), the above act of 1869 was rearranged, and became §§ 728 to 730, as follows:

'Sec. 727. In the District the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts.

'Sec. 728. Any married woman may convey, devise, and bequeath her property, or any interest therein, in the same manner and with like effect as if she were unmarried.

'Sec. 729. Any married woman may contract, and sue and be sued in her own name, in all matters having relation to her sole and separate property, in the same manner as if she were unmarried.

'Sec. 730. Neither the husband nor his property shall be bound by any such contract, made by a married woman, nor liable for any recovery against her in any such suit, but judgment may be enforced by execution against her sole and separate estate in the same manner as if she were unmarried.'

The difference between these sections and the former act is noticeable. By the first section of the act of 1869, the absolute right of a married woman over her property is not given with respect to such property as she has acquired by gift or conveyance from her husband. The final clause of this section reads as follows: 'But such married woman may convey, devise, and bequeath the same' (that is, her separate property, except as above stated), 'or any interest therein, in the same manner and with like effect as if she were unmarried.' The first clause of this section is repeated in Rev. Stat. § 727 but the second clause is thrown into a separate section (728), which declares that 'any married woman may convey, devise, and bequeath her property, or any interest therein, in the same manner and with like effect as if she were unmarried.' Literally, this section extends to all her property, and is not limited to the 'same' property described in § 727, and thus excluding that which she acquired by gift or conveyance from her husband. Under the act of 1869, therefore, the power of a married woman to convey, devise, and bequeath her property does not extend to such as she acquired by gift or conveyance from her husband, while under § 728 it extends to all her property, however derived.

The second section of the act of 1869 likewise reappears without change as §§ 729 and 730, and no question is likely to arise with respect to any differences in construction.

The decisive question then is whether § 728 is to be construed as an independent act, or whether the plaintiff is at liberty, by referring to the prior act from which it was taken, to show that it was the intention of Congress to limit it to the cases named in such prior act. The general rule is perfectly well settled that, where a statute is of doubtful meaning and susceptible upon its face of two...

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