Lyne's Executor v. Crouse et al.
| Decision Date | 01 May 1845 |
| Citation | 1 Pa. 111 |
| Parties | STAHL, Executor of LYNE, v. CROUSE et al. |
| Court | Pennsylvania Supreme Court |
Boas, for plaintiff in error.
Under the 2d section of the act of 8th of April, 1833, Purdon's Digest, (Stroud's edition, 1032,) a married woman may, under a power legally created for the purpose, dispose of her real estate. He argued that where a power is generally given, without defining the mode in which it must be executed; it may be exercised either by deed or will. Sugden on Powers, 207. Any words indicating an intention to give or reserve a power are sufficient. Ibid. 97, 98.
Feoffment of lands generally, and devise to uses, it shall be as owner; but where owner is not able to grant, but by virtue of the power may grant the land, it shall be by the power, and not as owner. 1 P. Williams, 160.
Now, in the case before your honours, Eliza Jones owned the land, and in view of marriage created a trust, reserving that it shall be for her sole use and benefit, against debts of her intended husband, due or to be thereafter contracted, and both premises and profits to be "subject to her order alone." This, he contended, was a general power reserved to be executed by grant or will; that the words indicated such intention, and that the mode of execution was not defined. Sugden on Powers, 207.
A power was, therefore, legally created to dispose of her real estate by will, as well as by deed. A gift simply to her separate use, as feme covert, is the same as a gift to such uses as she may appoint by deed or will. Ibid. 115. He also cited Sugden on Powers, 116 — 119; 9 Ves. J. 520; 4 Digest N. Y. R. 766.
McCormick, for defendants in error.
He argued that a married woman has no right to make a will of lands. Act of 8th of April, 1833, sec. 1; West v. West, 10 Serg. & Rawle, 445; Thomas v. Folwell, 2 Whart. 11; Wallace v. Coston, 9 Watts, 137. He also cited Dorrance v. Scott, 3 Whart. 309, to show that if the wife have a power to charge the estate by deed or will, this does not give the power to charge it by a judgment. A power reserved to the wife to dispose of real estate by deed, would not confer the power to dispose of it by will, because the act of 1833 requires a power to be legally created to dispose of real estate by will. To this point he cited 32 Law Lib., Roper on Husband and Wife,...
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