Thomas v. Folwell

• Court: Pennsylvania Supreme Court
• Writing for the Court: GIBSON, C. J.
• Citation: Thomas v. Folwell, 2 Whart. 11, 30 Am. Dec. 230 (Pa. 1836)
• Decision Date: 31 December 1836
• Parties: THOMAS v. FOLWELL and Another.

2 Whart. 11

30 Am.Dec. 230

THOMAS v. FOLWELL and Another.

Supreme Court of Pennsylvania.

December 31, 1836

CASE STATED.

It is the settled law of Pennsylvania, that a married women is to be deemed to possess no power in respect to her separate estate, but what is positively given, or reserved to her, by the instrument creating such estate.

Where by a deed made after marriage, real estate was conveyed in trust for the separate use of A., the wife of the grantor the trustee to receive the rents and profits, and pay the same over to A. or to such person, and in such manner as she should appoint; it was held, that she had no power to devise the estate by an instrument in nature of a will.

AN action was brought in this Court to December term, 1835, by Agnes Thomas, guardian of the person and estate of Mary Ann Allen, against William Folwell, jun., and Samuel N. Davis executors of the will of Richard F. Allen, deceased; and a case was stated for the opinion of the Court as follows:

" Richard F. Allen, and Susan J. Allen, his wife executed to Anthony J. Thomas, on the fourth day of December 1829, a deed of trust as follows: ‘ This Indenture made the first day of June, 1829, between Richard F. Allen, of the city of Philadelphia, merchant, and Susan J. Allen, his wife of the first part, and Anthony J. Thomas, of Germantown township, Philadelphia county, miller, of the second part, witnesseth, that for and in consideration of the sum of nine thousand five hundred dollars, unto them at or before the sealing and delivery hereof, by the said Anthony paid, the receipt whereof is hereby acknowledged, the said Richard F. Allen and Susan his wife, have granted, bargained and sold, aliened, enfeoffed, released and confirmed, and by these presents do grant, bargain, and sell, alien, enfeoff, release and confirm unto the said Anthony J. Thomas, and to his heirs and assigns, in fee simple, the following described property--in trust nevertheless, and to and for the uses, interests and purposes hereinafter expressed and declared; that is to say, all that certain messuage or tenement, and lot or piece of ground thereunto belonging, situate on the west side of Delaware Front street, between High street and Mulberry street, in the city of Philadelphia, containing in breadth on the said Front street, about eighteen feet, and in length or depth, holding that breadth about one hundred and forty-one feet nine inches, to a certain ten feet wide alley, extending from thence, northward into Garden street, alias Coomb's alley--bounded, & c. And together also, with all and singular the buildings, improvements, ways, alleys, passages, waters, water-courses, rights, privileges, members, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever, of them the said Richard F. Allen, and Susan his wife, in law or otherwise howsoever of, in and to the same. Also, all that certain lot or piece of ground situate on the north side of Cherry street, at the distance of two hundred and twenty-four feet eastward, from the east side of Schuylkill Fifth street, in the city of Philadelphia, containing in front or breadth on the said Cherry street, twenty feet, and in length or depth, one hundred and thirty feet--bounded, & c. Together with all and singular, the streets, ways, alleys, passages, waters, water-courses, rights, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand of them the said Richard F. Allen, and Susan his wife, in law, equity or howsoever, of, in and to the same. To have and to hold the property above described and hereby granted and conveyed, with the appurtenances, unto the said Anthony J. Thomas, his heirs and assigns forever--UPON TRUST NEVERTHELESS, and to and for the only proper use and behoof of the said Susan J. Allen, wife of the said Richard F. Allen, her heirs and assigns forever; and to receive the rents, issues and profits of the same, and to pay over the same to the said Susan J. Allen, or to such person or persons, and in such manner as she the said Susan, shall or may direct, order and appoint, from time to time, and at all times hereafter, and the said Richard F. Allen, for himself, his heirs, executors and administrators, doth covenant and agree to and with the said Anthony J. Thomas, his heirs and assigns, by these presents, that the said Richard F. Allen, and his heirs, the said messuage or tenement and lot or piece of ground, hereditament and premises hereby granted and conveyed with the appurtenances unto the said Anthony in trust, for the uses, intents and purposes aforesaid, against him the said Richard F. Allen, and against his heirs, and against all every person whomsoever lawfully claiming or to claim by, from or under him or them, or any of them, shall and will warrant and forever defend by these presents. In witness whereof, the said parties have hereunto set their hands and seals. Dated the day and year first above written.

[Signed] R. F. ALLEN. (Seal.)

SUSAN J. ALLEN. (Seal.)'

The deed was duly witnessed, and was acknowledged the fourth day of September, A.D. 1829, and recorded in the office for recording deeds for the city and county of Philadelphia, the 7th day of September, 1829.

Susan J. Allen on the third day of March, 1833, made a will in which after disposing of certain personal estate, she made the following devise:

‘ Item, In reference to a deed of trust executed to Anthony J. Thomas, by Richard F. Allen, my husband, and myself, dated the first day of June, in the year 1829, recorded in the office for recording of deeds for the city and county of Philadelphia, in Deed Book G. W. R. No. 134, page 129, & c., of a certain house and lot of ground in Front street, and a vacant lot of ground on Cherry street, in the same deed, as will more fully appear by said deed of trust; I hereby authorise, empower and request the said Anthony J. Thomas, trustee as aforesaid, to reconvey and transfer the said property at my demise, or as soon after as is convenient, to my husband R. F. Allen, or to any other person or persons he may direct, as fully and effectually as I could or might do.’

After making some further legacies and bequests, she concluded as follows: " Finally and lastly, I constitute my brother Anthony J. Thomas, executor of this my last will and testament.'

Anthony J. Thomas died while the testatrix yet survived, who then made the following alteration in her will in reference to the trust estate.

‘ Second, and as to all the property mentioned and contained in a certain deed executed by Richard F. Allen and myself to Anthony J. Thomas in trust for me, mentioned in my said will and testament, and recorded in Deed Book, G. W. R. No. 24, page 129, & c., I hereby give, devise and bequeath the same to my husband, Richard F. Allen, in fee, and my will and desire is, that the same shall and may be conveyed to him as soon after my decease as may be. And I hereby nominate and appoint William Folwell, jr., of the city of Philadelphia, trustee, in the place of Anthony J. Thomas, deceased, to convey the said property to the said Richard F. Allen, in fee simple as aforesaid.

‘ Third: And I hereby nominate and appoint my said husband Richard F. Allen, trustee in the place of Anthony J. Thomas, since deceased, of all the property by me in my said last will and testament, given,...