West v. West's Ex'rs

• Decision Date: 24 March 1825
• Citation: 24 Va. 373
• Parties: West v. West's Executors
• Court: Virginia Supreme Court

24 Va. 373

West v. West's Executors

Supreme Court of Virginia

March 24, 1825

This was an appeal from the Superior Court of Bedford county.

The case was argued by Leigh, for the appellant, and Johnson, for the appellees; but as it is so fully discussed by the Judges it will be unnecessary to do more than refer to the opinions which follow.

Judgment reversed.

OPINION

Judge Carr. Judge Green. Judge Coalter. Judge Cabell. The Judges delivered their opinions. ^[*]

March 24. The Judges delivered their opinions. ^[*]

JUDGE CARR:

In April 1803, Margaret West, and the appellant, being man and wife, a separation, by mutual consent, took place between them; as appears by a letter from the appellant to John Hook the father of his wife. This letter gave the father considerable offence, if we may judge from some marginal notes, proved to be in his handwriting. The separation between West and his wife, was permanent. It is said they lived about fifty miles apart.

On the 29th of May, 1808, John Hook, made his will, having five children, he gives to each a fifth part of his estate, deducting the different sums he had advanced to them respectively, (which he names in the will.) To the other four children, the devises are made directly; vesting in the devisee, the clear legal title. The devise to his daughter Margaret, is in the following words; " And the remaining one-fifth, I give to my executors, for the benefit of my daughter Margaret West, at the discretion of my executors, subject to a deduction of 2001. paid Thomas West, which said 2001. I desire my executors may institute a suit for; and provided the same may be recovered, my executors are requested to dispose of the same, to my daughter Margaret West, to be disposed of at her discretion."

After the death of the father, a division of the estate took place, and Margaret's share of the personalty was put into her possession, and remained with her constantly afterwards. She also purchased a tract of her father's land, which was charged to her in the division; but no conveyance was ever made.

On the 1st of January, 1822, Margaret West made her will in the usual form, which, in the July after, was offered for probate to the County Court of Bedford. That Court admitted it to probate, and the husband, who contested its admission, appealed. The Superior Court affirmed the judgment; and the husband again appealed.

Two grounds of opposition to the will were taken: 1st, as to the ability of the testator, in fact, to make a will: 2d, as to her competency in law. The first point was properly abandoned; for it is clear, from the evidence, that she was of sound and disposing mind.

The second is a more difficult question. I will enquire, 1st, could Mrs. West make a will of personals? 2d, as to real estate?

It is certainly a general rule, that a feme covert cannot make a will; but to this rule there are some exceptions. She may make a will of every thing she is entitled to in autre droit, as where she is executrix; but nothing will pass, but by a pure right of representation to the former owner. For, if the property is reduced into possession, from that moment it becomes the property of the husband, and cannot pass by the will. She may also make a will of her choses in action not reduced into possession, and chattels real; but if the husband does not assent to the proof of the will, it will be void, and cannot be proved. If he does assent, either by matter ex post facto the death of the wife, or by previous contract, that entitles the executor of the wife to claim those things which would have been the husband's, as administrator. Per Lord Thurlow, in Hodsden v. LoydBrown Ch. 534. So, where there is an agreement between husband and wife, before marriage, that the wife shall have to her separate use, either the whole, or particular parts, of her personal estate, she may dispose of it by an act in her life, or by will; and she may do it by either, though nothing be said of the manner of disposing of it. Peacock v. MonkVes. 190. So, by a devise, a married woman may acquire a separate interest, without the intervention of trustees; and the legal estate devolving on the husband, he will be decreed a trustee for the wife. Bennett v. DavisP. Wms. 316. So, a legacy to a feme covert, " her receipt to be a sufficient discharge to the executors," gives it to her sole and separate use, and makes the husband a trustee for her; and a present to the wife by the husband's father, or even by a stranger, during the coverture, has been considered a gift to her separate use. Graham v. Lord Londonderry, 3 Atk. 393. In Hearle v. Greenbank, 1 Ves. 301, Lord Hardwicke says, " In case of personal estate given to a feme covert, it is a rule of the Court, that she may dispose of it." In Fettiplace v. Gorges, 3 Brown Ch. 8, the Lord Chancellor says, " All the cases shew, that the personal property, when it can be enjoyed separately, must be so, with all its incidents, and the jus disponendi is one of them." In Rich v. Cockell, 9 Ves. 369, it is said, that " the disposition by will is incident to a trust for the separate use of a feme covert; and the husband, having taken a transfer of the property, is held a trustee for the wife." Cases without number, might be cited, to shew that this is the settled law on the subject.

Let us enquire now, whether the devise to Mrs. West operated to give her the sole and separate use of the property. And here it is proper to recollect the state of things under which the will of her father was made. His daughter had been five years in a state of separation from her husband; and that separation attended by circumstances, which (whether justly or not) seem to have caused considerable irritation against the husband, in the old man's mind. He gives to his other four children, directly, four-fifths of his estate; " and the remaining one-fifth, I give to my executors, for the benefit of my daughter, Margaret West, at the discretion of my executors." If the clause had even stopped here, it does not seem to me, that there could have been a rational doubt, that the intention was to exclude the marital rights. Here is an express trust raised; the legal estate vested in executors, for the benefit of his daughter. But the residue of the clause adds " confirmation strong," to this construction. He directs his executors to sue West for the 2001. which he had received, in part of his wife's fortune; and that, if recovered, it shall go to his daughter. Now, while he was thus, with a spirit even vindictive, directing a prosecution against the husband, for the small portion which had gone into his hands; it is impossible to suppose, that he intended to give that same husband the control and enjoyment of the whole property he was about giving to his daughter. I have no doubt, therefore, that this was the separate estate of Mrs. West; that as to it, the marital rights never attached; and that her jus disponendi was perfect, so far as related to the personalty, whether it consisted of the specific chattels she received, or the fruits and produce of those chattels, made by her own care and attention; for she had the same power over the produce, as over the principal; or as the Lord Keeper expresses it, in Gore v. KnightVern. 535, " the sprout is to savour of the root."

Let us now examine the legal ability of Mrs. West to devise her real estate. There can be no doubt that this was as much her separate estate, as the personal, and I presume, as free from the marital rights. For the husband, I apprehend, cannot be tenant by the curtesy; having had, during the coverture neither a legal nor an equitable seisin; one of which Lord Hardwicke considers, absolutely necessary to entitle him; Hearl v. Greenbank, 1 Ves. 301; a case precisely like the present, so far as regards this point. I state this to shew, that the appellant can have no interest in this part of the case. If the will be void as to the land, it must descend to her heirs; and from the best examination I have been able to give this subject, I am brought to the conclusion, that as to the land, it is void. I do not mean to say, that a feme covert cannot, in any case, or by any means, make a testamentary disposition of lands; but that in this case, the precautions necessary to enable her to exercise that power, have not been taken. If a woman, having land, shall, before marriage, by proper conveyance, or after marriage, by fine, convey her land to trustees in trust for herself during coverture, for her separate use, and afterwards that it shall be in trust for such person as she shall, by any writing under her hand and seal, or in nature of a will, appoint, and in default of such appointment, to her heirs; and she afterwards makes such appointment; that will be a good declaration of a trust. Peacock v. Monk, ubi supra. Whoever takes under such declaration, takes by virtue of the execution of the power, and as if the limitation in that writing of appointment, had been contained in the deed creating the power. Southby v. Stone-houseVes. 610. So the feme may dispose of her estate, by way of power over an use; as if she conveyed the estate to the use of herself for life, remainder to the use of any person, whom she, by any writing, & c. should appoint; and in default of such appointment, to her own right heirs. This power, thus reserved, she may execute. 2 Ves. 191. These, Lord Hardwicke, seems to think, are the only modes in which a woman can dispose of land, during coverture. Where the legal estate remains in her, and there is only an agreement between herself and husband, that she may dispose of the land by deed or will, Lord Hardwicke, Lord Thurlow, and the writers on the subject, consider that such disposition, though it may bind the...