Travis v. Sitz

• Decision Date: 17 May 1916
• Parties: TRAVIS ET AL. v. SITZ ET AL.
• Court: Tennessee Supreme Court

185 S.W. 1075

135 Tenn. 156

TRAVIS ET AL. v. SITZ ET AL.

Supreme Court of Tennessee.

May 17, 1916

Appeal from Chancery Court, Franklin County; V. C. Allen Chancellor.

Suit by T. D. Travis and others against P. T. Sitz and others. From a judgment of the Court of Civil Appeals, affirming a decree for plaintiffs, defendants appeal. Affirmed.

Floyd Estill and Frank Lynch, both of Winchester, and Felix Lynch of Chattanooga, for appellants.

Robinson & Fancher, of Sparta, for appellees.

NEIL C.J.

The first question for determination is whether the following instrument created a separate estate in Laura Hudgins:

"For the love and affection I have for my daughter Laura Hudgins, I, James A. Hudgins, do hereby transfer and convey unto my said daughter Laura Hudgins, to take effect, and with the restrictions hereinafter, a tract of land situated in civil district No. 2, Franklin county, Tennessee. * * * To have and to hold said tract of land to the said Laura Hudgins and her heirs, free from the debts, liabilities, or contracts of her husband if she should ever marry. * * * But this deed is not to take effect until the death of my wife, and my death, as the use of the place during my life, and the life of my wife, Elizabeth Hudgins, is herein and hereby expressly reserved. My clear intention is to give the said land to my daughter Laura Hudgins at the death of my wife and myself, without power of disposal in any way, and not to be liable to be sold for her debts, or the debts or liabilities of any husband she may have if she ever marries. This 4th day of October, 1879."

We are of the opinion that a separate estate was created by the words:

"To have and to hold said tract of land to the said Laura Hudgins and her heirs, free from the debts, liabilities, or contracts of her husband if she should ever marry, * * * and not to be liable to be sold for * * * the debts or liabilities of any husband she may have if she ever marries."

We have in this state no direct authority in any published case, but in the second volume of King's Digest, p. 1275, § 68, there is a reference to an unreported decision, Blackwell v. Blackwell, rendered at Brownsville in 1869, which seems to be authority on the point. In that case the conveyance contained the clause:

"None of the property shall ever be subject to the debts of the husband, and that the husband be permitted, during the joint lives of himself and wife, to use, control, work, manage, and direct all the said property as he may judge best, receiving and applying the earnings, proceeds, and profits to the joint use and benefit of himself and wife, for the support, maintenance, and education of the issues of the intended marriage, if any there be."

It was held, according to Mr. King's report of the case, that this language created a separate estate in the wife as to the corpus, and a joint estate as to the income and earnings.

In Grotenkemper v. Carver, 9 Lea (77 Tenn.) 280, the language of the instrument was:

"To her sole and separate use, and to be held by her free from the debts, liabilities, and contracts of her present husband, William H. Carver, or any future husband she may have."

The court said that the words "to her sole and separate use" were sufficient to create a separate estate, and that the residue of the sentence, through being in accordance with an establish legal usage, "was intended to make assurance doubly sure, by expressing the grantor's object in a different form." The same form, substantially, appears in Molloy v. Clapp, 2 Lea (70 Tenn.) 586, and Wood v. Polk, 12 Heisk. (59 Tenn.) 220; but these cases went off on other points.

The precise point, however, arose in Young v. Young, 56 N.C. 216, 219. The language there considered was, immediately following the bequest of a slave to testator's married daughter Anna Young:

"And not to be subject to any debt or debts which Jesse Young may contract, or may have contracted."

The court said:

"Here is a plain and manifest intention on the part of the donor that the slave Mariah shall be for the sole and separate use of the wife and her children. The husband, Mr. Young, has no interest in the slave."

To the same effect is Martin v. Bell, 9 Rich. Eq. (S. C.) 42, 70 Am. Dec. 200. The language there under examination was:

"The property, real or personal, that my three daughters [naming them] may or do receive by this my will, I hereby settle it on them and the lawful issue of their bodies forever, and I do declare that it shall in no wise be subject to the debts of their husbands, in no case whatsoever."

It was held the daughters took separate estates.

The matter for ascertainment in all cases of this nature is whether it was the intention of the settlor to exclude the husband. In addition to the words, to the "sole and separate use" of the wife, which are universally held to create a separate estate, the following have in England been held sufficient evidence of the purpose, namely:

"For her livelihood," Darley v. Darley, 3 Atk. 399; Cape v. Cape, 2 Y. & C. 543; Lee v. Prideaux, 3 Bro. Chy. 383; "that she may receive and enjoy the profits," Tyrrell v. Hope, 2 Atk. 558; "to be at her own disposal," Prichard v. Ames, T. & R. 222; Kirk v. Paulin, 7 Vin. Abr. 95; "to be by her laid out as she shall think fit," Atcherly v. Vernon, 10 Mod. 531; "for her own use independent of the husband," Wagstaff v. Smith, 9 Ves. 520; Dixon v. Olmius, 2 Cox, 414; Simmons v. Horwood, 1 Keen, 9; Tullett v. Armstrong, 1 Beav. 1; "not subject to his control," Bain v. Lescher, 11 Sim. 397; "to her own use and benefit independent of any other person," Margetts v. Barringer, 7 Sim. 482; "to receive the rents while she lives, whether married or single," Goulder v. Camm, De G., F. & J. 146; "her receipt to be a sufficient discharge," Lee v. Prideaux, 3 Bro. Chy. 381, 382; Tyler v. Lake, 2 R. & M. 188; "to be delivered to her on demand," Dixon v. Olmius, 2 Cox, 414.

We have, in our Reports, many cases on the subject. The few which we cite will perhaps give a fair general view of our law, in respect of the matter, in its varied aspects. Powell v. Powell, 9 Humph. (28 Tenn.) 477; Barnum v. LeMaster, 110 Tenn. 638, 75 S.W. 1045, 69 L. R. A. 353; Williford v. Phelan, 120 Tenn. 589, 113 S.W. 365; Mitchell v. Bank, 126 Tenn. 669, 150 S.W. 1141; Hamilton v. Bishop, 8 Yerg. (16 Tenn.) 33, 29 Am. Dec. 101; Beaufort v. Collier, 6 Humph. (25 Tenn.) 487, 44 Am. Dec. 321; Loftus v. Penn, 1 Swan (31 Tenn.) 445; Gardenhire v. Hinds, 1 Head, (38 Tenn.) 402; Pearson v. Davis, 1 Heisk. (48 Tenn.) 593; Eaves v. Gillespie. 1 Swan (31 Tenn.) 128; Woods v. Sullivan, 1 Swan, 507; Houston v. Embry, 1 Sneed (33 Tenn.) 480; Meredith v. Owen, 4 Sneed (36 Tenn.) 223.

It may be said of the language in the deed now before us that it is difficult to conceive of the husband (without the intervention of some form of trust) owning property which is not at all liable for his debts, nor subject to his contractual powers. So by exclusion of the legal incidents that attend the right of property it is clear on principle that the language could have no other meaning than an intention to exclude the husband.

We do not think any strength is added to this conclusion by the clause restraining alienation, as insisted by learned counsel. Baggett v. Meux, 1 Coll. 138; Tullett v. Armstrong, 1 Beav. 1; Stogdon v. Lee, 1 Q. B. 661. In the case last cited it is said that to infer the existence of a separate estate from the mere fact of a restraint on alienation would result in the plainly unsound conclusion that that which is a mere accessory to the separate use, for the purpose of rendering it effectual, ought, standing alone, to compel an implication of that separate use to which it is only an accessory.

Before leaving this branch of the case, it is well to note a question debated at the bar and in the briefs; that is, whether our act of 1849-50 (Shannon's Code, §§ 4234, 4235) has any bearing on the controversy. The substance of that statute, as construed by our cases, is that, not only can there be no dispossession of the husband and wife, or either of them, on a sale under execution of the husband's interest in the wife's general real estate, during the life of the wife, but it cannot during her life be aliened by the husband voluntarily in such way as to dispossess her, or, if dispossessed, she may recover possession by suit through a next friend, making her husband a defendant. Coleman v. Satterfield, 2 Head, 259, 264, 265; Lucas v. Rickerich, 1 Lea (Tenn.) 728; Garth and Buckman v. Fort, 15 Lea (83 Tenn.) 683, 687, 688; Key v. Snow, 90 Tenn. 663, 18 S.W. 251; McCallum v. Petigrew, 10 Heisk. (57 Tenn.) 394; Corley v. Corley, 8 Baxt. (67 Tenn.) 7; Bryant v. Freeman, 131 Tenn. 87, 173 S.W. 863, L. R. A. 1915D, 996. By Acts 1879, c. 141, the rights of the husband in the wife's land, as tenant by the curtesy initiate, were so reduced that he was left only the privilege of renting out the land as governor of the family, and of collecting the rents for the benefit of the family. Parlow v. Turner; 132 Tenn. 339, 347, 178 S.W. 766; Ables v. Ables, 86 Tenn. 333, 9 S.W. 692. Would the meager nature of the husband's interest have any bearing on the inferences to be drawn from the language of the deed in question, which we have just held showed an intention to create a separate estate in the wife? It would not. In the discovery and determination of a purpose to create a separate estate, the inquiry is not necessarily confined to property in which the husband would have an interest, but for the existence of such separate estate. Price v. Planters' Nat. Bank, 92 Va. 468, 23 S.E. 887, 32 L. R. A. 214.

We may add that a trustee is not essential to the creation of a...