Metro. Bank of St. Louis v. Taylor

• Decision Date: 31 October 1873
• Citation: 53 Mo. 444
• Parties: THE METROPOLITAN BANK OF ST. LOUIS, Appellant, v. WILLIAM F. TAYLOR, LUCY G. TAYLOR, and CHARLES BOBB, Respondents.
• Court: Missouri Supreme Court

53 Mo. 444

THE METROPOLITAN BANK OF ST. LOUIS, Appellant,

v.WILLIAM F. TAYLOR, LUCY G. TAYLOR, and CHARLES BOBB, Respondents.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Louis Circuit Court.

F. K. Ryan, with Daniel Dillon, for Appellant.

I. It is immaterial what the language of the deed, as at first drawn, was, but all the parties must be governed by the deed as amended by the decree.

The words “sole and separate” are recognized by the law as expressly indicating the intention of the parties to exclude marital rights. (Wills vs. Sayers, 4 Madd. Ch. R., 216; Clancy on Rights, 263; 2 Story Eq. Juris., § 1382; Nix vs. Bradley, 6 Rich. Eq., 43; Goodrum vs. Goodrum, 8 Iredell Eq., 213.)

II. A separate estate may be created in a feme sole in like manner as in a femme covert. (Tullett vs. Armstrong, 4 Mylne & C., 376; Scarborough vs. Dorman, Id., 377; Newand vs Paynter, Id., 408; 2 Spence Eq., 524; 2 Bright, Husb. and Wife, 205; 2 Story Eq. Jur., 1384; Beaufort's Adm. vs. Collier, 6 Humph, 487; Phillips vs. Grayson, 23 Ark., 769; Schafroth vs Ambs, 46 Mo., 114; Id., 580.)

III. There is no distinction as to the language to be used in creating a separate estate in a femme sole, and in creating such an estate in a femme covert. (____ vs. Lyne, 1 Younge, 562; Davis vs. Prout, 7 Beav., 288; Adamson vs. Armitage, 19 Ves. Jr., 416; Darkin vs. Darkin, 23 Eng. Law and Eq., 593; Snyder vs. Snyder, 10 Barr, 423; Fears vs. Brooks, 12 Ga., 195; Schafroth vs. Ambs, 46 Mo., 114.)

IV. A separate estate may be created in several by the same instrument; and a separate estate may be created in some of the beneficiaries mentioned in an instrument, and not in others, where the same language is used with reference to all. (Nix vs. Bradley, 6 Rich. Eq., 43; Anderson vs. Brooks, 11 Ala., 953; Bridges vs. Wilkins, 3 Jones Eq., 343; Thrash vs. Hardy, 31 Ga., 203.)

C. C. Whittelsey, for Respondents.

I. There is no such thing as a separate estate in a male. The law knows of no such estate, and yet to give Lucy G. a separate estate requires a different constitution to the same words which are applied to the estates given to her brothers. The brothers took an equitable estate in fee, and a fair construction requires, that the sister should take a similar estate, for the same words are applied to all in the same sentence.

II. A separate estate may be given to become separate upon the marriage of a feme sole, but it must appear from the deed or devise, that it was the intention of the donor or devisor to provide against the consequences of future marriage. (Benson vs. Benson, 6 Sim., 126; Knight vs. Knight, 6 Sim., 121; In re Gaffe, 1 McN. & Gord., 541; Scarborough vs. Borman, 1 Beav., 34; S. C. on Appeal, 4 Mylne & Cr., 378.)

Tullett vs. Armstrong, 4 Myl. & Cr., 377, discusses all the preceding cases and overrules Massey vs. Parker, 2 Myl. & Keen, 174. The cases all seem to turn on giving estates for life and forbidding anticipation. (Scarborough vs. Borman, 1 Beav., 34; S. C., 4 Myl. & Cr., 378.)

III. The intention of the grantor in the deed is manifest to give Mary H. Bobb, who was a married woman, a separate estate, but it was not intended to give Lucy G. a separate estate when she should thereafter marry. (Hawkes vs. Hubback, 11 Law R., (Eq. Cas.) 5; Evans vs. Knorr, 4 Rawle, 66; Stoebler vs. Ruerr, 5 Watts, 181; Hulme vs. Tenant, 1 Wh. & Tud. L. C. Eq., 394; Hill on Trustees, 419.)

ADAMS, Judge, delivered the opinion of the court.

The defendants, Wm. F. Taylor and Lucy G. Taylor, are husband and wife

The wife joined with her husband in the execution of a promissory note for $1,900, which is held by the plaintiff.

This suit was brought to subject to the payment of this note the interest of the wife in certain real estate situated in St. Louis, the legal title to which is vested in the defendant, Charles Bobb, as trustee for her and others.

The material question is, whether the interest of Mrs. Lucy G. Taylor is held by the trustee for her sole and separate use, so that she could in equity bind it for the payment of the note executed by herself and husband.

Mrs. Lucy G. Taylor was formerly Lucy G. Bobb, one of the children of the defendant, Chas. Bobb, and his wife, Mary H. Bobb, and one of the beneficiaries in the deed of settlement hereinafter referred to.

On the 23d day of January, 1845, Hannah Letcher, who afterwards married John D. Stevenson, executed a deed of settlement, whereby she conveyed in fee to the defendant, Charles Bobb, as trustee, the real estate sought to be charged with the payment of the note referred to. The language of this deed declaring the trust is as follows:

“To have and to hold the same, with the rights, privileges, and appurtenances thereto belonging, unto him, the said Charles Bobb, and to his heirs and assigns forever. In trust however, for the sole use, benefit and behoof of Mary H. Bobb (wife of said Charles Bobb), and of Charles L. Bobb, John H. Bobb and Lucy G. Bobb, children of said Charles Bobb, and to their heirs, executors, administrators and assigns forever. That they may have, hold and enjoy the same, with all the rights, improvements, buildings, &c., separate from said Charles Bobb, their respective husband and father, as their own sole, individual and exclusive property; and the said Charles Bobb of the second part, trustee as aforesaid, shall hold said property for the sole benefit of the said Mary H. Bobb, wife of the said Charles Bobb, and Charles L. Bobb, John H. Bobb, Lucy G. Bobb, and to their heirs, and shall obey their written instructions in all things relating to said property; shall rent, lease, mortgage, sell or dispose of the same, or any part thereof, for such consideration, to such person or persons, and in such manner as they, the said Mary H. Bobb, Charles L. Bobb, John H. Bobb and Lucy G. Bobb, their heirs or assigns, shall direct in writing; and the rents, profits and moneys accruing from such disposition of said property, or any part thereof, he shall pay over to said Mary H. Bobb, Charles L. Bobb, John H. Bobb and Lucy G. Bobb, or their order; and generally and in all things the said trustee and his heirs and assigns shall faithfully, according to the true intent and meaning hereof, discharge the trust herein created.” At the time this deed of settlement was made, Lucy G. Bobb was the youngest child of Mary H. Bobb, and only six months old.

In the year 1853 Mary H. Bobb died, leaving as her only heirs-at-law the children mentioned in the deed of settlement, and two others subsequently born, Cora Bobb and George Bobb.

After the death of Mary H. Bobb, it was ascertained, that there had been a mistake made by the draughtsman in writing the deed of settlement, in not authorizing the sale and disposition of the property without the written consent of the beneficiaries. To correct this mistake, and effect a resettlement of the property, the trustee, Charles Bobb, brought a suit in equity in the St. Louis Land Court, in the year 1854, joining the surviving beneficiaries, and Cora and George Bobb, subsequently born, children and heirs of Mary H. Bobb, as plaintiffs in such suit against Hannah Stevenson, formerly Hannah Letcher, and her husband, John D. Stevenson.

The petition filed in the Land Court assumes, that it was the intention of the deed of settlement to convey the land in dispute to Charles Bobb, as trustee, “for the sole, separate and exclusive use, benefit and behoof of the said Mary H., Charles L., John A., and Lucy G. Bobb, their heirs and assigns, forever,” & c.

The prayer of the petition asks for a judgment reforming the deed so as to carry out the object and intention of the parties who executed the same: “That the said trustees shall forever hold the said real estate for the sole, separate and exclusive use, benefit and behoof of said parties, who are entitled to the equitable interest as aforesaid, their heirs and assigns, with power in said trustee,” etc., and the “moneys or proceeds arising from any sale or disposition of the same, or any part thereof, to be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of said parties as aforesaid holding or entitled to the equitable interest as aforesaid.”

The Land Court rendered a judgment in conformity to the prayer of the petition. The substantial part of the judgment is in the following language:

“That said deed be reformed, and that said mistake in said deed be corrected as asked for in said plaintiff's petition, so as to carry out and accomplish the said object and intention of the said parties who executed the said deed as stated in said petition; that the title in fee simple of the said real estate be vested in the said Charles Bobb, the father of said minors, and forever held by him and his heirs, for the sole, separate and exclusive use, benefit and behoof of the said Charles L. Bobb, John H. Bobb, Lucy G. Bobb, Cora Bobb and George Bobb, their heirs and assigns, according to the said deed as aforesaid, with full power and authority, however in the said Charles Bobb, trustee as aforesaid, to rent, lease, mortgage, sell or dispose of the said real estate, or any part thereof, for such consideration, to such person or persons, and in such manner as he, the said Charles Bobb, trustee as aforesaid, may deem best for the interest of the said parties entitled to the equitable interest in said real estate as aforesaid; and with full power and authority in the said Charles Bobb to execute and deliver such deeds and assurances, so as to pass and convey the same in fee simple; and all rents and profits arising from the same, and moneys and proceeds arising from any sale or disposition of said real estate, or any part thereof, shall be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of the said parties entitled to the equitable interest as aforesaid.”

At common law the wife was not allowed to hold property separate...