Sarah W. BINGHAM et al., Appts.,

v.

Jacob WELLER et al.

(113 Tenn. 70.)

1. A fee-simple estate is vested in a woman by a deed to her and her body heirs,

in which her husband is entitled to curtesy, although the grant is expressly made free from his debts and liabilities.

2. A man is deprived of his curtesy interest in land by conveying it to his wife to her sole, separate, and exclusive use, free and discharged from all his control and liabilities.

(June 25, 1904.)

Civ. App. 496, 26 S. W. 887; Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S. W. 889.

So the right to alimony may form a consideration.

Thus, the compromise of an alimony suit is a sufficient consideration to support a deed from husband to wife. Adams v. Loomis, 22 Grant, Ch. (U. C.) 99, Affirmed in 24 Grant, Ch. (U. C.) 242.

A transfer by a husband to his wife of a slave, together with other property in discharge of alimony which has been decreed against him, will empower her to manumit the slave, and he cannot, after the death of his former wife, assert any claim to the slave or her offspring. Wallingsford v. Allen, 10 Pet. 583, 9 L. ed. 542. The court says that equity sustains transfers of property from husband to wife during coverture when a clear and satisfactory case is made out that the property is to be applied to the separate use of the wife; where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband's benefit, or of their family, or which has been appropriated by him to his uses or where the husband is in a situation to make a gift of property to his wife, and distinctly separates it from the mass of his property for her use. The court further says, with reference to the property in controversy before it, that the wife was to be considered as a feme sole, and her right to dispose of it followed as a matter of course.

The duty of the husband to provide for the support of his wife will furnish a sufficient consideration to support the conveyance. Under this rule he may make a settlement of property upon, or an advancement of property to, her to provide for her wants in case of his death.

As between the parties themselves a voluntary settlement upon the wife may be upheld in equity. Pawley v. Vogel, 42 Mo. 291.

A settlement not fraudulent, by a person not indebted, is valid though voluntary. Battersbee v. Farrington, 1 Swanst. 106.

In Curtis v. Price, 12 Ves. Jr. 89, the court says with respect to a settlement made after the settler's marriage that a settlement of this kind is void only as against creditors. To every other person it is good.

In Moore v. Page, 111 U. S. 117, 28 L. ed. 373, 4 Sup. Ct. Rep. 388, which was a case involving the rights of creditors of the husband,

APPEAL by complainants from a decree of

the

for Shelby County in a proceeding to settle the rights and interests in certain real estate. Reversed. The facts are stated in the opinion. Mr. Henry Craft for appellants. Messrs. Turley & Turley, for appellees: By the act of 1784 all estates tail were converted into fee-simple estates; so that in 1851, when this deed was drawn, it conveyed a fee-simple title to Mrs. Caroline 1. Weller.

Middleton v. Smith, 1 Coldw. 144; Kirk v. Furgerson, 6 Coldw. 483; Wynne v. Wynne, 9 Heisk. 309; Beecher v. Hicks, 7 Lea, 207.

Mr. Weller is tenant by the curtesy of the Beale-street lot.

the court assumes that property conveyed by husband to wife as a settlement may be held as her separate estate beyond the control of her husband.

A conveyance of property from a man to his wife, when made as a provision for her, will be sustained and upheld in equity when the rights of creditors are not affected. Kellogg v. Hale, 108 III. 164.

And where the conveyance is made to the wife by the husband directly the presumption is that an advancement was intended. Andrews v. Oxley, 38 Iowa, 580; Arp v. Jacobs. 3 Wyo. 489, 27 Pac. 800; Spring v. Hight, 22 Me. 408, 39 Am. Dec. 587.

But the presumption that the conveyance to the wife was intended as an advancement for her benefit may be rebutted. Livingston v. Livingston, 2 Johns. Ch. 539.

Under this rule, there is no reason why a conveyance should ever fail for lack of consideration.

A gift causa mortis may therefore be valid. Miller v. Miller, 3 P. Wms. 356; Lawson v. Lawson, 1 P. Wms. 441.

But in Weathersby v. Weathersby, 39 Miss. 652, where the question was as to the right of the wife to slaves which had been hers before marriage, the court says it is well settled that where a settlement is made by the husband upon the wife for a permanent separation. if she return to her husband's house and protection such conduct on her part amounts to a total extinguishment of any future claim under the settlement.

A transfer by a man to his wife of all his property upon condition that she will assume his debts and pay the same out of property received from him and property held in her own right is valid as against him. Brown v. Brown, 22 Neb. 703, 36 N. W. 275.

VI. Does conveyance create separate estate.

The only way in which the conveyance would be of any value to the wife would be to hold that it was her separate estate free from the control of the husband, for it would be of little avail to recognize the validity of the gift or conveyance and at the same time hold that the property immediately revested in the husband by reason of his marital rights. To create separate estate in equity in cases of gifts from strangers, the court required the

A separate estate is vested in the wife by a conveyance by the husband of a life estate in lands by deed containing a clause that she is authorized and empowered to collect the rents and use the same in any manner she may elect, to her separate use, and free from his debts, contracts, and control. Vick v. Gower, 92 Tenn. 391, 21 S. W. 677.

A deed by a man of leasehold property to his wife "to her own proper use and benefit" makes the property her separate estate. Surman v. Wharton [1891] 1 Q. B. 491. An assignment by a man to his wife, by deed, of a leasehold to hold the same "as her separate estate" operates as a valid declaration of trust in favor of the wife. The court says the husband may become a trustee for his wife, but cannot retain any beneficial interest in the thing which is the subject of the deed. Fox v. Hawks, L. R. 13 Ch. Div. 822.

A clause in a conveyance by a man to his wife that she is to have and to hold the property to her, and her heirs forever, and so that the grantor, his heirs, or any other person, shall have no interest in it, creates in her

Alexander v. Miller, 7 Heisk. 81; Beecher

A husband may be tenant by the curtesy where the estate of the wife was a conditional or determinable fee, although the condition has happened upon which the limitation over in favor of other parties takes effect.

Crumley v. Deake, 8 Baxt. 362.

Wilkes, J., delivered the opinion of the court:

Mrs. S..W. Bingham filed the bill in this cause against her father, Jacob Weller, to have her rights and interests in two pieces of property in the city of Memphis declared, to recover this interest, and also her share of the rents and income which have been

a separate estate. Davisson V. Sage, 20 Grant, Ch. (U. C.) 115.

So. by antenuptial agreement the wife may be given power of disposition over her separate estate the same as though she remained sole, and such power will extend to property obtained from her husband. Strong v. Skinner, 4 Barb. 552.

Since the estate is an equitable one, so that it is necessary to resort to a court of equity to establish and protect it, that court has adopted the rule of giving effect to the evident intention of the parties and holding that the estate is separate, at least so far as to protect it from the control of the husband during the lifetime of the wife.

In all instances of direct gifts to the use of the wife, if allowed at all, they must be supported as gifts to the sole use of the wife, and the husband is her trustee. This is necessa rily so, for in that way only can the gift be effectual. It must be inferred, therefore, that the parties intended to create a separate property for the wife. Steel v. Steel, 36 N. C. (1 Ired. Eq.) 452.

A conveyance by a man to the separate use of his wife will constitute him a trustee of the legal title of the property for her use, where the effect of the legal unity is such that the legal title is retained by him. And a conveyance in the statutory form to convey real estate will be held to be to her separate use, although that fact is not expressly stated in the conveyance. This trust will be enforced in equity, and, if she devises the property to her children, and he retains possession after her death, he will be regarded as trustee for them so as to prevent his acquiring a title by adverse possession until he expressly repudiates the trust. Kent v. Kent, 19 Ont. App. Rep. 352.

The

Maclennan, J., says separate estate is an interest in property which is sui generis, and its distinguishing quality is that in relation to it the marriage bond is to be disregarded. husband cannot vest the legal title in the wife, but he can give her what is known as a separate estate. And if that is the effect of his conveyance he has made himself a trustee, and his act may with perfect propriety be called a declaration of trust.

A conveyance by the husband need not state that it is for the sole and separate use of the

direction of the court. It also asked the court to construe said Joiner deed, and determine the amount of interest or title in said Market-street lot acquired by the said Caroline I. and her four children, who were parties thereto.

In these ex parte proceedings, on the 12th of January, 1858, a decree was entered adjudging that under the Joiner deed the children of Caroline I. Weller took an estate and interest in common with her in the Marketstreet property, and the cause was referred to the clerk to report whether it was manifestly to the interest of the said Caroline I. and her minor children that the Market street lot should be sold, and proceeds invested in other property, or loaned out under the direction of the court. The clerk and

142, 14 S. W. 484; Snodgrass v. Hyder, 95 Tenn. 575, 32 S. W. 764.

The mere fact of the gift is as strong evidence that it is to be the sole and separate property of the wife as any declaration in writing would be. Lockwood v. Cullin, 4 Robt. 129.

A deed of gift by a man to his wife is valid as between the parties, and vests the title in her as completely as though she had acquired it by inheritance. Scrutchfield v. Sauter, 119 Mo. 615, 24 S. W. 137.

A conveyance of lands by a man directly to his wife is equivalent to a conveyance to her sole and separate use, and creates an equitable separate estate. But the effect of the insertion of a provision that the land was to be held in all respects as separate estate under the law was left undetermined. Loeb v. McCullough, 78 Ala. 533.

In Wedel v. Herman, 59 Cal. 516, the court held that a conveyance by husband to wife, intended as a gift, vested the property in her as her separate property.

In opposition to that mass of authority, in Plumb v. Ives, 39 Conn. 120, it was held that, in the absence of language in a deed from husband to wife of a life estate through a third person that the conveyance is to her sole and separate use, the law will not supply such intention, and he will have a right to the income as before. The court, after finding a reason for the conveyance which might support it without holding that there was an intention to deprive him of the rents and profits, held that the court ought not to impute an intention to the parties which may not have been in their minds. And the condition of the parties gave aid to the holding that there was no such intention.

So a Federal court has held that property conveyed by a man to his wife and her heirs by a deed which contains no terms from which it appears that it was the intention of the grantor to exclude himself from the benefit and control of it is not, by the operation of such deed, her separate estate. He will retain a freehold estate in such property, which is subject to execution in favor of his creditors. But, so far as conveyances after its adoption are concerned, such property is converted into separate estate by a constitutional provision that the property of every married woman shall not be subject to the debts and contracts

master reported that it would be manifestly to the interests of the parties, and especially of the children, to sell the property, and invest the proceeds in other property, or loan it out at interest, as the court might order. This was confirmed by the chancellor, and it was again adjudged that Caroline I. and her children, named in the petition, held the Market-street property in common, and directing it to be sold. This decree was renewed on June 16, 1858, and again on January 22, 1859.

On November 28, 1859, an order was entered showing that petitioners had dismissed their petition.

Nothing further appears to have been done until the November term, 1855, when a decree of sale was renewed.

of her husband. Starr v. Hamilton, Deady, 268, Fed. Cas. No. 13,314.

And in Craine v. Edwards, 92 Ky. 109, 17 S. W. 211, the court held that a statute empowering a married woman to devise her separate estate does not apply to land obtained by gift from her husband, where the deed did not expressly state that it was for her sole and separate use. The court said, it is contended that, if the conveyance is from a stranger, it must contain words expressly stating that it is for her sole and separate use to have that effect, but not if it is from her husband. But the court says that this has been held with respect to personal estate, but that it is not true with respect to conveyances of real estate. "There is a manifest difference between the two cases. In the one he certainly has no longer any interest whatever in the property,the transfer vests it absolutely in her; while in the other, by so making the deed, he may intend that his marital rights shall attach to the property just the same as if the conveyance were from some other party to her. In this instance, why was not the husband entitled to the use of the land during the life of the wife, and to be tenant by the curtesy after her death? Where he merely conveys land to her by a deed general in its terms, an intention upon his part to create a separate estate in her cannot be presumed from the mere fact that the conveyance is from the husband. It, like a deed from any other person, must show in some way an intention to create a separate estate, or else, in the absence of a power to do so, she cannot, under the statute, devise it."

A distinction, however, is to be kept in mind between these equitable separate estates and statutory separate estates. The estates which are created and protected by courts of equity have only the incidents which belonged to such estates before the enactment of the statutes, and the rights pertaining to statutory estates do not belong to them.

Thus, a statute providing that all property which shall accrue to any married woman shall be owned and enjoyed by her as her own separate estate does not affect equitable separate estate; but the further provision that any deed from husband to wife shall be void against his existing creditors will abrogate the rule that the ordinary conveyance by hushand to wife is void, and cause such convey