Borland v. Welch

• Decision Date: 27 February 1900
• Citation: 162 N.Y. 104,56 N.E. 556
• Parties: BORLAND v. WELCH.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 104

56 N.E. 556

BORLAND

v.WELCH.

Court of Appeals of New York.

Feb. 27, 1900.

Appeal from supreme court, appellate division, First department.

Action by M. Woolsey Borland, as sole surviving trustee under a certain trust agreement, against Francis C. Welch, as executor of the estate of Sarah Lloyd Coit, deceased. From a judgment of the appellate division (57 N. Y. Supp. 30) reversing a judgment in favor of plaintiff, plaintiff appeals. Affirmed.

John L. Cadwalader, for appellant.

Edward E. Sprague, for respondent.

CULLEN, J.

In 1838, Sarah Lloyd Borland, in contemplation of her marriage with Henry Coit, which subsequently took place, entered into a deed or contract with him and certain trustees in the nature of a marriage settlement. By this deed Miss Borland conveyed to the trustees all her estate, real and personal, derived or to be derived from the will of her grandfather, then deceased, and ‘which she may at any time or times hereafter derive, either by devise descent, distribution, gift, or otherwise howsoever, from any source or sources, person or persons whatsoever or whomsoever, other than the said party of the second part’ (the husband), in trust to apply the income to her sole and separate use during life, and, in case of her husband surviving, then to pay him during life an annuity of $2,000. The deed reserved to Miss Borland the power to appoint, by an instrument in the nature of a will, the remainder to the issue of the contemplated marriage, or of any subsequent marriage she might make. It then provided that, in case of default in the exercise of the power of appointment, the trust estate should descend to the right heirs at law and next of kin of Miss Borland, as in the case of intestacy, under the laws of this state. Mr. Coit covenanted to execute any deed requisite to vest title of the trust property, or the estate which might come to Miss Borland under the will of her grandfather, ‘and so in like manner in regard to every acquisition of property which might come to the said party of the first part during her lifetime.’ Mr. Coit died in 1880. In 1896, Mrs. Coit received a legacy of $20,000, which she invested, and retained until her death, in 1898. The complaint does not allege that Mrs. Coit left any heirs at law or next of kin, nor is there any finding on that subject, but both counsel state in their briefs that there were no children of her marriage, and that her next of kin were brothers and sisters, or the children of deceased brothers and sisters. There is some evidence in the case as to who made up the Borland family at the time of Mrs. Coit's decease. This evidence accords with the statement of counsel, and we shall, therefore, assume that statement to be correct. Mrs. Coit left a will disposing of her property. This action was brought by the surviving trustee under the trust deed against the executors of Mrs. Coit to recover the securities representing the legacy received by her, and subject them to the terms of the trust deed. A majority of the judges of the appellate division were of the opinion that by a proper construction of the antenuptial settlement only such property as might come to the wife during coverture was subject to the trust deed. In that view we concur. The courts, deeming the primary object of the covenant to settle the subsequently acquired property of the wife is to prevent its falling under the sole control of her husband, have long held that, in the absence of any expression showing that it was intended to have a more extended operation, such covenant is to be construed as if the words ‘during said intended coverture’ had been inserted. In re Edwards, 9 Ch. App. 97; Howell v. Howell, 4 Law J. Ch. (N. S.) 242; Reid v. Kenrick, 24 Law J. Ch. 503. The decision in Dickinson v. Dillwyn, L. R. 8 Eq. 546, is not in conflict with this rule, but expressly recognizes it. The legacy in that case, which was subjected to the settlement, accrued to the wife in reversion before the death of the husband. It was not a mere possibility. The learned judge who wrote the dissenting opinion, while recognizing this rule of construction, thought that certain provisions of the marriage settlement showed that it was intended to include property acquired by the wife after the termination of her coverture. The first provision relied upon is that by which the wife is authorized to make appointment in favor of the issue of the contemplated marriage or of any subsequent one. The reference to a subsequent marriage doubtless shows that the trust was not to terminate by the death of the husband prior to that of the wife. We do not think it bears on the question of whether property acquired after the termination of the coverture should be subjected to the trust. Much stress is laid upon the covenant that the husband will settle under the trust any property which might accrue to the wife ‘during her lifetime.’ This provision, from one point of view, does tend to support the contention that all property acquired by the wife at any period of her life should be subjected to the trust; but, from another point of view, it has a contrary tendency. It is to be observed that the covenant is not that of the wife but of the husband. We do not intend to determine whether the wife, by joining in the deed, is bound by the husband's covenant. Apart from that question, the fact that the covenant is the covenant of the husband would seem to contemplate a duration only during the time he might be such husband. This is the first ground upon which the decision in Re Coghlan (1894) 3 Ch. Div. 76, proceeded. The antenuptial settlement there contained a covenant that, if any moneys or personal estate should come to or devolve upon the wife during her life, then the said husband and his wife would settle such moneys or personal estate upon the trust prescribed in the deed. On account of the form of the covenant, it being that of the husband and wife, it was held to be operative only during coverture. That the courts have been entirely right in the view that the dominant object of the settlement of the wife's property by antenuptial agreement was to avoid the husband's marital rights given by the common law, and to save it from the claims of his creditors, is manifest from the fact that since the enactment of the married women's statutes such settlements have become, if not obsolete, extremely rare in this state. Considering the uniformity with which the rule mentioned has been adhered to by the courts, our attention having been called to but a single case in which the courts have subjected property of the wife, acquired after coverture, to trusts of an antenuptial agreement (Stevens v. Van Voorst, 17 Beav. 305, repudiated in Re Edwards, supra), we think the terms of the trust deed now before us do not manifest any such clear intention to the contrary as is requisite to take the case out of the general rule.

But, if it be assumed that we err in the construction of the trust deed, the result would still be the same. So far as that deed was to operate on the subsequently acquired property of the wife, it was an executory contract. To that contract...