Charles v. Charles

• Decision Date: 04 March 1852
• Citation: 49 Va. 486
• Parties: CHARLES v. CHARLES.
• Court: Virginia Supreme Court

49 Va. 486

CHARLES v. CHARLES.

Supreme Court of Appeals of Virginia.

March 4, 1852

(Absent Cabell, P.)

1. The rights of a husband to the property of his intended wife, may be intercepted by his agreement to that effect. And where by express contract before and in contemplation of marriage, for which the marriage is a sufficient consideration, he agrees to surrender his right to the enjoyment of the property during the coverture, and his right to take as survivor there remains nothing to which his marital rights can attach during the coverture, or after the death of the wife. In such case the wife is to all intents to be regarded as a feme sole in respect to such property; and there is no necessity that the marriage contract or settlement should limit the property to her next of kin upon her failure to appoint; but it will pass as if the wife died sole and intestate.

2. If the husband has relinquished his marital rights to his wife's property, he is not entitled to administration upon her estate.

A marriage being about to take place between Henry H. Charles of the county of York, and Martha P. Wynne, widow of Richard Wynne deceased, a deed bearing date the 8th day of October 1835, was executed by the parties for the settlement of her property. This deed recited that it had been agreed between the parties that Mrs. Wynne should, after the marriage receive and enjoy, during the joint lives of the said Wynne and Charles, the interest and occupation of her personal estate; and also that the same, and the interest and profit thereof, from and after the decease of such of them as should first happen to die, should be at the sole and only disposal of the said M. P. Wynne, notwithstanding her coverture. And that it had been also agreed, that in case the said Charles should, after the marriage, happen to survive the said M. P Wynne, that he should not claim any part of the real or personal estate whereof the said M. P. Wynne should be seised or possessed or entitled to, at any time during the coverture; and that the said real and personal estate of the said M. P. Wynne should be in nowise under the control of said Charles, nor in any manner or at any time subject to his debts.

The deed then proceeds to convey in the name of M. P. Wynne to James Kirby sr., with the consent and approbation of Charles, which is witnessed by his sealing the deed, all her property both real and personal, in trust for Mrs. Wynne until the marriage, then upon trust that Kirby will permit her to enjoy the sole, separate and exclusive use of the said property for her own separate and special use; and upon the further trust that the trustee will permit the said M. P. Wynne to dispose of the said property by deed, will or otherwise, as she shall think proper; and that he will convey a legal title to the person or persons to whom she may convey the property. This deed was executed by Charles, Mrs. Wynne and the trustee, and duly admitted to record: And the marriage took place.

In December 1849 Mrs. Charles died, leaving her husband surviving her, without having disposed of her estate either by deed or will, or otherwise. She left no child surviving her or descendant of a child, though she had had children by her two former marriages; but they had died before her marriage with Henry H. Charles. Her distributees, if her husband was not entitled to her personal estate, were her nieces, descendants of sisters, of whom one was married to William H. Charles.

The slaves belonging to Mrs. M. P. Charles at the time of her marriage, never went into the possession of the trustee, but always remained in the possession and enjoyment of Henry H. Charles, during the coverture.

At the April term 1850 of the Circuit court of York county, Henry H. Charles moved the Court to be permitted to qualify as the administrator of his late wife, Martha P. Charles; which motion was opposed by William H. Charles, who asked for the administration for himself, on the ground of his marriage with one of the nieces of Martha P. Charles, entitled, as he insisted, to a portion of the estate. These motions came on to be heard together in April 1851, when the Court overruled the motion of Henry H. Charles, and granted the administration to William H. Charles. And thereupon an exception was taken to the opinion of the Court, and Henry H. Charles applied to this Court for a supersedeas, which was awarded.

Morson, for the appellant.

It is submitted that the decision of the Circuit court was erroneous and prejudicial to Henry H. Charles, and ought to be set aside and reversed. He must by operation of law be entitled to the property, unless the deed has intercepted the rule of law, and by substituting a rule of its own and a rule intended to apply to the emergency which has occurred, has clearly not only taken the property from him, but given it to others. For where, upon a given state of facts, the rule of law turns property over to one man, it cannot be turned over to another by any compact, agreement or declaration of any party or parties which stops short of clearly giving, and manifesting an intention to give it to such other. Heirs cannot be disinherited by the strongest declarations in a will that they shall not take: the will must go further and designate others who shall take. Boisseau v Aldridges, 5 Leigh 222. By similar reasoning, husbands cannot be deprived of their rights of property arising " jure mariti " by a deed which shall even declare that they should not have them, unless the deed further provided that they should go to others. If they be not by the deed, in the event that has occurred, turned over to any body, then it is not a " casus fœ deris, 'DD' not a case which the deed has provided for, but a " casus omissus, " one for which a rule must be found not in the deed, but in the general principles of the law. And these general principles give the property to the husband; enable him to qualify as the wife's administrator, and afterwards to keep possession absolutely for his own benefit, subject only to the payment of her debts. See 1 Lomax's Ex'rs 135, 136, 310, 311; Tate's Dig. 394-5, § 7. See also Code of Virginia of 1849, p. 541, § 4.

Even should it be held, then, that the words of the deed manifested an intention to take the subject from the husband upon the contingency that has happened, they failed to give it to others and only authorized the wife so to give it; and this she has never done. Of consequence neither the deed nor the wife has ever yet given the subject to others; and if given to others it can only be by operation of law. But there certainly is no rule of law which, under the circumstances, can give the property to others; though there is the general rule of law which does give it to the surviving husband.

It is worthy of remark, that in the recital of the deed, as well as in the express declarations of trust, while great care is evinced to secure the property to the separate use of the wife, and to give her the power to dispose of it, there is an utter absence of any expression or provision to point out how it is to go in case of her making no such disposition. The trustee, " his executors, administrators and assigns," are to permit the feme [[[[studiously omitting, apparently, her executors or administrators,] to enjoy the separate use of the property, and to dispose of it by deed, will or otherwise; and they are required to convey the legal title to the person or persons to whom she may convey the property. Now this omission is very strong to shew, [made as it was in a deliberate deed,] that as against the husband, the only parties intended to be preferred certainly the only parties expressly preferred, were the feme and her appointees; and it is unnecessary to dwell upon the essential distinction between such appointees and the present antagonists of the husband. Indeed, it can...