Fisher v. Filbert
| Decision Date | 24 May 1847 |
| Citation | 6 Pa. 61 |
| Parties | FISHER <I>v.</I> FILBERT. |
| Court | Pennsylvania Supreme Court |
May 24. BELL, J.
The first error assigned impeaches the bond, the subject of this suit, as utterly invalid against the husband, because, as it is thought, the money due under it, when collected, would belong to him. But this depends on the question, whether, in equity, the effect of the instrument is to confer a separate interest on the wife. It is now too firmly settled, by numerous authorities, to admit of question, that a wife may acquire a separate property by agreement with the husband, either with or without the intervention of trustees; McKennan v. Phillips, 6 Whart. 571, 2 Story's Eq. § 1380. And I think it is beyond doubt, that this may be by bond, conditioned either for the payment of a sum in gross or an annuity to the wife, which will be enforced, in equity at least, as an agreement; Cannel v. Buckle, 2 P. Wms. 243; Watkyns v. Watkyns, 2 Atk. 61; Blaker v. Cooper, 7 Serg. & Rawle, 500. In such case, apart from any question of fraud, the only concern of a court of equity would be to discover whether the donor intended a trust for the separate use of the wife, and that fact being once clearly established, the husband himself will be turned into a trustee for her, rather than that the trust should fail; Clancy on Married Women, 260. Where the gift or agreement is made in view of immediate separation, the interest created will always be treated as vesting a separate dominion in the wife, for the circumstances show that such must have been the intention of the parties, by a necessary implication. Such a conclusion is also frequently established; though the marital relation be never disturbed, and there is no express stipulation that the thing given, or agreed to be given, shall be the separate property of the feme. Examples of this are furnished by Slanning v. Style, 3 P. Wms. 337, Calmady v. Calmady there cited; Mangey v. Hungerford, 2 Eq. Ca. Abr. 156, and particularly Lucas v. Lucas, 1 Atk. 270, where a husband transferred £1000 South Sea annuities into the name of his wife. This was considered so decisive an act as to amount to an agreement by the husband, that the property should become hers. And as in the absence of any intervening rights of creditors, it seems to be agreed the intention of the husband is to determine the nature of the gift or agreement, it is not easy to see how a bond given by him to a trustee for the use of the wife, can be regarded in any other light than as giving her a distinct interest in the chose in action; for it is impossible to account for such a step on the part of the husband, except upon the hypothesis of such an intent. This indeed would seem to be the inevitable implication, though the machinery of a trustee be not employed, the only difficulty presenting itself, regarding the remedy for its enforcement where there is no distinct tribunal existing as a court of Chancery. But where the instrument is executed between the husband and a third party, as here, this formal obstacle vanishes, and I know of no instance in which, on the ground of coverture alone, the marital dominion of the husband over the interest so created has been held to continue. But at present it is unnecessary to continue this train of reflection further, for, considered in itself, the obligation under consideration bears upon its face indubitable evidence that the sum of money, of which it secures the payment, is to be subject to the control of the wife alone. This is to be found in the clause giving the absolute power of appointment of the sum secured, which, without more, would constitute her quasi a feme sole in regard to it. It is said a power of appointment given to a feme covert may be executed by the husband, unless he be expressly excluded; but such can never be the case where a husband, as against himself, confers a power on his wife, for this would be manifestly...
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Hinkle v. Landis
...and free right of disposal: Hinney v. Phillips, 50 Pa. 382; Cridge v. Hare, 98 Pa. 561. See also: McKennan v. Phillips, 6 Wh. 571; Fisher v. Filbert, 6 Pa. 61; Williams's App., Pa. 307; Rose v. Latshaw, 90 Pa. 238; Lahr's App., 90 Pa. 507; Kincade v. Cunningham, 118 Pa. 501. The acts of Mar......
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