Shonk v. Brown

• Decision Date: 11 May 1869
• Parties: Shonk <I>versus</I> Brown <I>et al.</I>
• Court: Pennsylvania Supreme Court

61 Pa. 320

Shonk versus Brown et al.

Supreme Court of Pennsylvania.

March 12, 1869.

May 11, 1869.

March 12th 1869.

Before THOMPSON, C. J., READ, AGNEW and WILLIAMS, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Luzerne county: No. 301, to January Term 1869.

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J. V. Darling and E. S. Osborne (with whom were G. B. Nicholson and E. P. Darling), for plaintiff in error.—1. The estate being a fee simple in Mrs. Atherton, was it so limited by the will that she could not convey it? There can be no restraint of alienation: Walker v. Vincent, 7 Harris 369. "Separate estate of a married woman" means an estate held by some one in trust for her. In Todd's Appeal, 12 Harris 429, and the cases in Pennsylvania, the estate has been limited to a trustee with two exceptions: Lancaster v. Dolan, 1 Rawle 248; Pullen v. Rainhard, 1 Whart. 514; Thomas v. Folwell, 2 Id. 11; Smith v. Starr, 3 Id. 66; Hamersley and Wife v. Smith, 4 Id. 126; Hoover v. Samaritan Society, Id. 445; Wallace v. Coston, 9 Watts 137; Lyne v. Crouse, 1 Barr 111; Rogers v. Smith, 4 Id. 93. The exceptions are Cochran v. O'Hern, 4 W. & S. 95; Wetherill v. Mecke, Brightly 135. Other cases hold that a conveyance by husband and wife of her separate estate, where there is no trustee, is valid: Heath v. Knapp, 4 Barr 228; Dull v. Heath, 7 Id. 85.

This doctrine was held even after the Married Woman's Act of April 11th 1848, Pamph. L. 536, Purd. 699, pl. 11; Cumming's Appeal, 1 Jones 272; Goodyear v. Rumbaugh, 1 Harris 480; Faries's Appeal, 11 Id. 29; Haines v. Ellis, 12 Id. 253. The law as then declared thus stood when the conveyance was made to Dorrance. It could not be altered afterwards so as to affect that conveyance: Menges v. Dentler, 9 Casey 495. The Act of 1863, supra, to remove the unsettling of titles under the decision in Wright v. Brown, 8 Wright 224, validated conveyances theretofore made by married woman having a separate estate and no trustee. The legislature has validated many transactions which otherwise would have been invalid, and the legislature has been sustained in this court: Barnet v. Barnet, 15 S. & R. 72; Tate v. Stooltzfoos, 16 Id. 35; Bleakney v. Farmers' and Mechanics' Bank, 17 Id. 64; Mercer v. Watson, 1 Watts 330; Journeay v. Gibson, 6 P. F. Smith 57; Greenough v. Greenough, 1 Jones 494; O'Conner v. Warner, 4 W. & S. 227.

S. T. Woodward and G. M. Harding, for defendants in error.— The restraint of alienation was good: McWilliams v. Nisly, 2 S. & R. 513; 1 Fearne on Con. Rem. 256. They referred on this point and examined, Lancaster v. Dolan and the other cases cited in connection with it by the plaintiff in error. The Act of 1848 does not change the power of married women over their separate estates. This act does not apply to this will, its date being before the passage of the act, and it must speak as of its date: 1 Jarman on Wills 292; Ex parte Earl of Ilchester, 7 Vesey 369; Earl of Albemarle v. Rogers, 2 Id. 482; Moely v. Moely, 5 Id. 248; Mullock v. Souder, 5 W. & S. 198.

A retroactive effect will not be given to a statute so as to affect contracts or property: Dwarr on Statutes 681; Ashburnham v. Bradshaw, 2 Atk. 36; Attorney-General v. Lloyd, 3 Id. 551; Same v. Andrews, 1 Vesey, Sr. 225; Martindale v. Warner, 3 Harris 471; Price v. Taylor, 4 Casey 96; Gable v. Daub, 4 Wright 220; Mullen v. McKelvy, 5 Watts 399; Murry v. Murry, 6 Id. 353; Kurtz v. Saylor, 8 Harris 205.

The Act of 1848 does not affect the construction of this will Wright v. Brown, supra; McMullin v. Beatty, 6 P. F. Smith 395; Townsend v. Maynard, 9 Wright 200. The Act of 1863 is unconstitutional, because it attempts to alter testamentary dispositions of property by subsequent legislation: Gilmore v. Shooter, 2 Mod. 310; Ashburnham v. Bradshaw, supra; Mullen v. McKelvy, 5 Watts 399; Murry v. Murry, 6 Id. 357; Kurtz v. Saylor, 8 Harris 205; Bradford's Will, 1 Parsons 168; Greenough v. Greenough, supra; Snyder v. Bull, 5 Harris 54; McCarty v. Hoffman, 11 Id. 507; Brown v. Hummel, 6 Barr 90; and Ervine's Appeal, 4 Harris 256. Because it is the exercise of judicial power: Const. of Penna., Art. 5, § 1; Greenough v. Greenough, supra; Presbyterian Corporation v. Wallace, 3 Rawle 132; O'Conner v. Warner, 4 W. & S. 223; Lambertson v. Hogan, 2 Barr 22; Dale v. Medcalf, 9 Id. 108; De Chastellux v. Fairchild, 3 Harris 18; McCabe v. Emerson, 6 Id. 111; Boom Co. v. Dodge, 7 Casey 285; Menges v. Dentler, 9 Id. 495; and Reiser v. The Saving Fund, 3 Wright 137. Because it is against the bill of rights: Const. of Penna., Art. 9, § 9, 11; Norman v. Heist, 5 W. & S. 171; Chaffee v. Michaels, 7 Casey 283.

The opinion of the court was delivered, May 11th 1869, by AGNEW, J.

Two questions are presented for our decision — one as to the power of Mrs. Ann Atherton to convey her separate estate, and the other as to the validity of the curative Act of 1863. The parties having united in treating the estate of Mrs. Atherton under the will of Jacob Gould as a fee simple, it is unnecessary to examine the will in this respect. The effect of the devise was to vest the estate for her sole and separate use, freed from the debts of her husband, and without power to convey during coverture. The will took effect after the passage of the Married Woman's Act of 1848, and it is thought this enabled her to convey, there being no trustee named in the will. But the want of a trustee does not change the nature of the trust, which is upheld in equity as well without as with a trustee: McKennan v. Phillips, 6 Wharton 571, and authorities cited on p. 575; Jamison v. Brady, 6 S. & R. 466; Cochran v. O'Hern, 4 W. & S. 95; Heath v. Knapp, 4 Barr 228; Wright v. Brown, 8 Wright 238. That the Act of 1848 produced a radical change in the condition of a married woman is undoubted as to the title to her estate. This had relation to her right of property, not to the powers she can exercise over it. At common law the husband was the absolute owner of her chattels and the profits of her real estate, and might by reduction to possession become owner of her choses in action. The Act of 1848 changed this rule and vested the title entirely in the wife. It was this title which the husband sought to control in Cummings's Appeal, 1 Jones 272, where Judge Rogers used the language often criticised, that a married woman must hereafter be considered a feme sole in regard to her estate, and may dispose of it by will or otherwise as a feme sole. Taking the language as it should be, in reference to the subject he was discussing, to wit, her title and her husband's power over it, the language is not so obnoxious to criticism as it is sometimes supposed. Certainly it does not countenance the use sought to be made of it in this case, as favoring her right to sell an estate settled to her separate use without a power of sale. At the time of her deed to Mr. Dorrance in 1854, it had not been said by this court that the Act of 1848, liberated an estate settled upon a married woman to her separate use without a power of sale, from the limitations of the settlement recognised in Lancaster v. Dolan, 1 Rawle 231, and a long line of cases following it. To have said so would have been to overthrow the donor's right to control his own property within the bounds of his legal authority, and to limit the extent and operation of his gift. This is the root of the error which has led to the attempt in this case to overturn the authority of Wright v. Brown and Wife, 8 Wright 224. There is a wide difference between an enactment that a married woman's property shall continue her own as fully after marriage as before, and that all property accruing to her, shall be owned, used, and enjoyed by her as her own separate property, without liability to the debts or the control of her husband, and an act to confer rights she does not possess, and actually withheld from her by the instrument conferring her title. We see no ground, therefore, on which Mr. Dorrance could conclude that he was buying a good title when he took Mrs. Atherton's deed for the property given to her by Jacob Gould without a power of sale. Such was the effect of his will without resorting to the express restriction on her power of sale, which makes the legal effect certainly no weaker. Jacob Gould had a right to control his gift so that she should have no power of parting with the estate under the influence or dictation of her husband. We see no reason to disaffirm Wright v. Brown and Wife, while the argument in its favor is so fully stated in the opinion it is unnecessary to defend it.

The second question cannot avail the plaintiff in error. Mrs. Atherton held the estate subject to the restriction imposed by the donor, having no right and no power to sell it, and in this condition died,...