Swift v. Castle (23 Ill. 209, 1859)

Walker, J.

It is urged as error, that the court below admitted improper evidence. It may be true that' evidence.was read on the hearing that was not pertinent to the issue, and yet there be no error for which the decree should be reversed. The question presented upon the trial before the chancellor, as well as in the appellate court, is, upon all the legitimate evidence in the cause, what decree should be rendered. The chancellor being the judge of both the law and evidence, the presumption is, that in rendering his decree he will only regard that which is legal and pertinent. When a trial is had before a jury, it is different, as then the court must first pass upon the admissibility of the evidence, and when admitted, the presumption is that they acted upon and considered all of the evidence before them as legitimate. When the party conceives that there is any irregularity or informality in taking the proofs, he may move to suppress depositions, and if the exceptions are overruled, he may except, but all questions as to the pertinency of evidence may be, and usually are, reserved to the hearing. All substantial exceptions may be taken on the hearing, either before or after the evidence is read, and the chancellor may determine - such exceptions as they are raised, or in forming his judgment upon which he bases his decree in the cause. Formal exceptions should be taken and determined before the hearing, for the reason that, if allowed, the party taking the depositions may, if proper, retake them, and avail himself of the benefit of the evidence. While it is not material when exceptions to the substance of evidence are determined, for if the evidence is not admissible under the issue, its presentation in any other form could not obviate the objection, and render it pertinent. Such a practice is more convenient than to separately pass upon the materiality of the various portions of evidence before the hearing ; it saves labor, time and expense, and is more satisfactorily determined when the issue, and all the evidence in the case, are before the court, on the hearing, than it could be when only an isolated portion is under consideration.

Evidence may be proper for one purpose and improper for another. It may be admissible as independent evidence, or only as dependent evidence. It may be admissible as tending to establish the issue, or it may be admissible as rebutting or supporting evidence. It may prove a fact, or it may only be a link in a chain which proves a fact. And if the court must, on a motion interposed before the hearing to suppress evidence, examine into all of the facts proved in the case to determine its materiality, it would amount to the labor of a trial of the cause on each motion, and if all the evidence was not then taken, the chancellor, in many cases, could not know but evidence might still be taken which would render what then appeared to be immaterial, highly important on the hearing. It is the correct practice for the chancellor, after the evidence is heard, to regard no portion of it which is immaterial or illegal, and to decide the case alone on the legal evidence adduced. Such is believed to have been the uniform practice which has been adopted from considerations of convenience, and is in no way calculated to hinder or delay the administration of justice, and no reason has been suggested, nor is any perceived, why it should be changed. Nor is it necessary to preserve exceptions to the rulings of the court in allowing or overruling exceptions to answers, depositions, or decrees, in a chancery proceeding, as in contemplation of law, all the decisions on motions, all of the evidence in the cause, and the decrees announced by the court, are matters of record. The office of a bill of exceptions is to introduce that into the record which, without its use, would not be a part of the record.

It is urged as a ground for setting aside the trust deeds executed to Swift by the trustee, the cestui que trust and her husband, that they were unauthorized, and were not legally binding upon the cestui que trust. The question of whether a- feme covert cestui que trust may dispose of her beneficial interest in the trust property by appointment, in all cases where she is not in terms restrained from doing so by the instrument creating the trust, has undergone much discussion by the various courts of this country and Great Britain. And upon an examination of the adjudged cases, they are found to be inharmonious and conflicting. One portion of them holding that a feme covert may exercise all the powers of a feme sole in alienating her separate property, unless restrained by the express language of the instrument creating the trust. While another, and much the larger class, hold that by her marriage she loses all power to contract in her own right, and that she and the husband, by . that relation, become one person in law, and that her legal existence is merged in his, so long as coverture exists, and that she can perform no legal or binding act, in reference to her separate property, but such as is authorized by the instrument creating the trust.

In determining this question, in the conflict of adjudged cases, it may be well to review some of the decisions of the various courts in which this question has been presented and judicially determined. In the case of the M. E. Church v. Jaques, 3 J. C. R. 77, Chancellor Kent, before whom the case was heard, with his usual industry and accuracy, with great learning and ability, after having carefully reviewed all the English decisions at great length, in delivering his opinion, says:

“ I apprehend we may conclude, (though I do it with unfeigned diffidence, considering how great talents and learning, by a succession of distinguished men, have been exhausted on the subject,) that the English decisions are so floating and contradictory, as to leave us the liberty of adopting the true principle of these settlements. Instead of holding that the wife is a feme sole, to all intents and purposes, as to her separate property, she ought only to be deemed a feme sole, sub modo, or to the extent of the power clearly given by the settlement. Instead of maintaining that she has an absolute power of disposition, unless specially sustained by the instrument, the converse of the proposition would be more correct, that she has no power but what is specially given, and to be exercised only in the mode prescribed, if any there be. Her incapacity is general; and the exception is to be taken strictly, and to be shown in every case, because it is against the general policy and immemorial doctrine of the law. These very settlements are intended to protect her weakness against her husband’s power, and her maintenance against his dissipation. It is a protection which this court allows her to assume, or her friends to give, and it ought not to be rendered illusory.”

“ The doctrine runs through all the cases, that the intention of the settlement is to govern, and that it must be collected from the terms of the instrument. When it says, she may appoint by will, it does not mean that she may likewise appoint by deed; when it permits her to appoint by deed, it cannot mean, that giving a bond, or note, or parol promise, without reference to the property, or making a parol gift, is such an appointment. So, when it says that she is to receive from her trustee the income of her property, as it, from time to time, may grow due, it does not mean that she may, by anticipation, dispose at once of all that income. Such a latitude of construction is not only unauthorized by the terms, but it defeats the policy of the settlement, by withdrawing from the wife the protection it. intended to give 'her. Perhaps wo may say, that if the instrument be silent as to the mode of exercising the power of appointment or disposition, it intended to leave it at large, to the discretion and necessities of the wife ; and this is the most that can be inferred.”

This was a case, in many of its features, similar to the one under consideration, and in which this point was presented for decision. It is true that this decision was reversed by the Court of Errors; but that being a court composed of judges and the members of the Senate, many of whom were not members of the legal profession, it does not militate against the reasoning of the chancellor.

In the case of Ewing v. Smith, 3 Dessaussure S. C. R. 417, the court, Watirs, J. delivering the opinion, after having partly reviewed the English decisions, says: “ I think, 'therefore, it may be fairly said, that the ground of authority is taken away from any precedents by which this court can be bound. But if it were not so, and if those relied on for complainant had their full weight, I should think, even on the ground of construction, that the power of Mrs. Smith over her separate estate was restricted to an appointment by will, and that she could not charge it with debts. It is admitted in the strongest of these cases, that When the power of disposing is exclusively restricted to a particular mode, it cannot be exercised by any other. It is true that there is no express restriction in this case, but such an intention appears to me from the nature of the settlement. * * * * * * Here, then, we see the English chancellors, although differing as to the obedience which they owed to precedent, yet all uniting in condemning the absolute dominion given to married women over their estates, and all concurring in recognizing and declaring what ought to be principles. I may, therefore, confidently say that even if Lord Thurlow and Lord Eldon were now sitting on this bench, and called on to settle the law for this community, they would settle it on these principles. Instead then of opposing their high authority, I feel expressly authorized by them in declaring the opinion; that a married woman, who has a separate estate, cannot part with it, or charge it, in any way, without an examination; that as by marriage she loses all the powers of a feme sole, a separate estate does not confer all those powers on her, and that, therefore, the power of appointing such estate must be expressly given, and the mode prescribed be strictly pursued. As the bond given by Mrs. Smith has not these sanctions, I am of the opinion that it ought not to be enforced.”

Again, in Calhoun v. Calhoun, 2 Strob. 234, and in Reid v. Lamar, 5 Strob. 37, the same court fully recognized the principles laid down in Ewing v. Smith, as the settled law. In the case of 5 Strob., the court says: “If anything can be considered as settled, it is the settled law of this State, that where property is given, or settled, to the separate use of a married woman, she has no power to charge, encumber or dispose of it, unless in so far as power to do so has been conferred upon her by the instrument creating her estate, which power must be strictly pursued.”

In the case of Weeks v. Sago, 9 Georgia, R. 199, the court recognize the rule that when the marriage settlement prescribes a particular mode for the disposition of the separate estate of .a married woman, she cannot dispose of it in any other, as when the power of disposing of it by will, with the consent and approval of her trustee, that she cannot dispose of it by will without the consent and approbation of such trustee. And that court, in the case of Wyllett v. Collins, 9 Georgia, 237, says, “ This court has not felt at liberty to depart from the doctrine held by Chancellor Kent, in thp case of the M. E. Church v. Jaques, (3 J. C. R. 77,) that a feme covert with respect to her separate property, is to be considered as a feme sole, to the extent only of the power given her by the deed of settlement.” The same rule was recognized in the subsequent case of Fears v. Brooks, 12 Georgia, 200, and later decisions, and it may be considered the settled law of that State. The Supreme Court of Texas also recognize and adopt the doctrine of the South Carolina courts. In the case of Cartright v. Hollis, 5 Texas, 169, the court say, “ The rule established by the South Carolina decisions appears to be more safe, and is more likely to promote the objects of the grant of a separate estate, than the English doctrine, which gives a married woman the power of a feme sole over her separate estate.”

The Supreme Court of Maryland, in the case of Miller et al. v. Williamson et al., 5 Md. R. 219, say, “ From this review of the decisions of our State, it appears it never has been decided that the wife has the right to dispose of her separate estate unless that power be given to her by the instrument making the settlement, nor where such power is exercised in a manner different from that pointed out in the deed or will, as the case may be ; so far from it,it was expressly said in the case of Tiernan v. Poor, that the right of disposition contained in the deed constitutes a permanent law, and that no decree could pass to enforce any contract unless such contract be within the limits of her jus disponandi.” In subsequent cases, the same court has held that a married woman has no power over her separate property, but such as is specially conferred by the instrument creating the estate, and' in its disposition she is restrained to the particular mode specified in the instrument when it undertakes to make such a specification. This, we think, may be regarded as the settled rule in that State.

The Supreme Court of North Carolina, in the case of Newlan v. Freeman, 4 Iredell Eq. R. 312, hold that, when land is conveyed to a feme covert, or to a trustee, for her separate use, she has no power of disposing of it by will, nor otherwise than by the mode prescribed for the conveyance of land by married women, unless a power to that effect has been expressly given to her in the deed of conveyance.

The Supreme Court of Mississippi, in the case of Doty v. Mitchell, 9 Smedes & Marsh. 447, holds that, “A married woman, as to her separate estate, is a feme sole only so far as the instrument conferring the separate estate creates her a feme sole. And in the disposition of such estate, the married woman is restricted to the particular mode or manner pointed out by the nstrument conferring the estate.”

The Court of Appeals in Virginia, in the case of Williamson v. Burkman, 8 Leigh, 27, Judge Tucker delivering the opinion, says, “ Upon the best reflection which I can give this matter, I am of opinion that a feme covert holding separate property in real estate by deed or will prescribing a particular mode of disposition, cannot dispose of it in any other mode, although the deed or will does not negative such other mode expressly.”

The Supreme Court of Pennsylvania, in the case of Lancaster v. Dolan, 1 Rawle, 248, C. J. Gibson delivering the opinion, says, “ In fine, notwithstanding the case of Newlan v. Newlan, (1 Serg.&Raw. 275,) which was hastily determined, on an exception to evidence, we are entirely prepared to adopt the conclusions of Chancellor Kent in the M. E. Church v. Jaques; that the English decisions are so floating and contradictory, as to leave us at liberty to adopt the true principle of these settlements. That instead of holding the wife to be a feme sole to all intents, as regards her separate estate, she ought to be deemed so only to the extent of the power clearly given by the conveyance. * * * That she has no power but what is absolutely given.” And in the subsequent case of Thomas v. Falwell, 2 Wharton, 16, Chief Justice Gibson, in delivering the opinion of the court, says, “We adhere to Lancaster v. Dolan, as an authority unopposed to any other, to which we are bound to submit, and as a decision founded in convenience and reason.” Again the court say, “ Why is a settlement ever made ? certainly to exclude a husband’s control. But to exclude his direct control, which consists of an exercise of legal.power, and yet leave him the means of giving effect to an indirect control, which consists in an exercise of personal influence, is to do nothing.” * * * * And, in conclusion, he says, “ We, therefore, hold it to be the settled law of Pennsylvania, that instead of having every power from which she is not negatively debarred in the conveyance,-she should be deemed to have none but what is positively given or reserved to her.”

In Tennessee, the Supreme Court, in the case of Morgan v. Elam,4 Yerger,450, the court say, Ch. J. Catron delivering the opinion, “ What the English doctrine is on this subject, it is difficult to ascertain. The decisions are so confused and repugnant, that Lord Eldon’s complaint (8 Ves.) is most true. He says, “ Upon all these cases together, it is utterly impossible to know the result.”

“ There are two classes of cases which lay down different rules. The one, that a married woman with separate property has no power over it, but that which is conferred upon her by the settlement. * * * The other class lays down the rule that a feme covert with separate property is to all intents a feme sole, except in so far as she is restricted by the instrument under which she claims.”

“ I find the reported cases of little use, and calculated rather to disturb than confirm a well settled principle of common law, that a married woman has no property or powers ; but equity permits her to be exempt from this rule so far as she stipulates for exemption.”

“ Yet the court can give her no powers beyond those given by the settlement. She acts substantially as an attorney in fact in such case, as she well may in any other. In either caso she must pursue the express authority—all beyond it is void.” And the same doctrine is fully recognized by subsequent adjudications of that court.

The Supreme Court of the United States lays down the same rule in the casei of English v. Foxall, 2 Pet. R. 595. The court there say: “ What then is to be understood by the stipulation, that the investment was to be made with her approbation ? That she was to have some agency in this investment, cannot be questioned. And it is an unreasonable interpretation to say that she was to have a controling agency within the limitation prescribed by the contract. She has not an arbitrary and unlimited discretion. The investment is restricted to these objects : freehold securities, United States stock, or bank stock, and the trustees are not authorized to make any other investment. Uor can she approve or disapprove of any others. All such acts, both in them and her, would be without authority.”

On the other hand, it is urged that the current of the English decisions support the rule, that the feme covert is in equity regarded as a. feme sole, and has the absolute control and disposition of her separate property, unless expressly restrained by the instrument by which her right to its use is created. We have seen that Chancellor Kent, Chief Justice Gibson, Judge Catron, and the Supreme Court of South Carolina, as well as the various other courts referred to above, arrive at a different conclusion. They hold that the English decisions do not establish the rule. It is true that those in its support are more numerous than those which are opposed to it. Lord Eldon and Lord Thurlow both regarded the rule as thus settled, but gave effect to it with great reluctance, and clearly intimated, that if it had not been that they felt themselves bound by former adjudications, they would have held the other way upon principle. And others following the rule, have done so with regret. The dissent of such names as those of Thurlow and Eldon certainly goes far to impair the force of the English decisions which support this doctrine. And the decisions referred to above hold a different rule from the English cases. The case of Jaques v. M. E. Church, 17 J. R. 548, reversing the decree rendered by Chancellor Kent in the same case, is in support of the rule contended for by plaintiffs in error. The court say, Platt, J. delivering the opinion: “We must set out in the argument with the consideration that she alone was absolute owner of all the property, and had a perfect right to dispose of it as she pleased. And the question then is, how far, if at all, did she divest herself of the estate, or of her disposing power over it by the settlement ? In my judgment, it would require plain and express words to authorize the conclusion, that she meant to lock up her property, or to tie her own hands in the use of it, or to restrict herself in the mode of disposing of it. The specification that she might dispose of it by deed or by will is no necessary implication that she might not do it in any other mode common to every proprietor.”

And this doctrine is supported by the subsequent decisions of the court, and there seems to be no doubt that it is the settled law in New York.

The Court of Appeals in Virginia, in the case of Vironneau v. Pegram, 2 Leigh, 183, say, the wife “ has the right to dispose of all her separate personal property and the profits of her separate real estate as a feme sole, unless restrained by the instrument creating the separate estate.” The will gave appellant an estate to her separate use and benefit, and imposed no restraint on her power of alienation. This was in the case of a devise to the wife, so that the husband might have no control over or right to the same. It will be observed in this case that no specific mode of appointment or disposition of the fund is prescribed by the will, and it is also in relation to personal property, and is therefore not repugnant to the case of Williamson v. Burkman, 8 Leigh, 27, which related to real estate, and even if it was, the latter case is subsequent in point of time, and overrules the former.

Judge Story, in his Commentaries on Equity Jurisprudence, Yol. 2, Sec. 1390, lays it down as a general rule, “ that all antenuptial agreements for securing to a wife separate property, will, unless the contrary is stipulated or implied, give her in equity full power of disposing of the same, whether real or personal, by any suitable act or instrument in her lifetime, or by her last will, in the same manner and to the same extent as if she were a feme sole. And in all cases where this power is reserved to her by means of a trust which is created for the purpose, she may execute the power without joining her trustees, unless made necessary by the instrument of trust.”

The.Court of Appeals in Kentucky, in the case of Hancock v. Ship, 1 J. J. Harsh. 438, hold that where slaves were held in trust for the husband and wife, and they, with the consent of the trustee, sold them, that if the trust had been for the separate use of the wife, she alone was competent to dispose of it, and the trust being for their joint use, they might sell the property to another.

Appellant refers to the cases of Brundridge v. Poor, 2 Gill & J. R. 1, and Tiernan v. Poor, 1 Gill & J. R. 216, in support of the rule, but it will be observed that in the first of these cases, the property was conveyed to trustees for the wife’s sole use, to dispose of at her pleasure without control of her present or future husband, and in the latter there was a conveyance to the wife, with power to sell, convey and dispose of, absolutely subject to no control whatever. In these cases ample'power was given by the conveyance to dispose of the property, and the mode of its disposition was not controlled or pointed out by the instruments creating the estate. And therefore they do not conflict with the later decisions in that court, but rather support them. And if there was any doubt on this question, it is determined by the case of Miller v. Williamson, which is later in point of time, and must have been considered by the court in this last adjudication.

From these various cases it is manifest to our minds, that the weight of authority clearly is, that a married woman can only convey her trust property in the manner authorized, and for the purposes specified, in the instrument creating the trust, if it contain any such provisions, otherwise she may dispose of it, without restraint either as to manner or purpose. It is true that Judge Story seems to aim at a different conclusion, unless he is to be understood, that when the manner and object of its disposition is pointed out, that it amounts to a stipulated or implied prohibition, that no other mode can be resorted to.

At the common law, by marriage the wife loses, during its continuance, all legal capacity to contract, or to sue and be sued, in her own right, and during the continuance of that relation, her legal existence is almost entirely suspended. She could sell her real estate or bar her right of dower, only by uniting with her husband in suffering a fine. She could not hold separate property in her own right, and her personal property held at the time of the marriage, as well as her future acquisitions, vested absolutely in her husband, also the use of her real estate. But by the interposition of a trustee, in whom the legal title is vested, by the instrument creating the trust, property may be enjoyed by her, freed from all control of her husband, and in such case she is entitled in equity to the beneficial interest. And when property is conveyed or demised to her separate use, equity gives her the power of controlling it, by sale or otherwise. And when she holds the beneficial interest, she may enjoy or sell it in the manner provided by the instrument declaring the trust. This power depends upon another well-recognized principle, that a feme covert may be appointed, and act as an attorney in fact. When the instrument creating the trust confers upon her power to sell or dispose of the trust estate, she, for the purposes of executing the trust, is an attorney in fact, and all her acts to be legal, must, as those of any other attorney in fact, strictly conform to the power delegated, and any deviation from its provisions will render the act void for want of authority.

No reason is perceived why a court of equity should confer upon her additional powers to those contained in the instrument creating the trust, more than it should upon any other attorney in fact-. To permit her to exercise such additional powers, is only authorizing her to defeat the object of the trust, and to disregard the intention of the parties, which should control in this as in all other contracts, when it can be ascertained from the instrument. It likewise leaves her under the influence of the husband, when, in a large majority of cases, the trust is created to prevent his exercising any control over the property. But few women have the resolution to resist the influence of the husband, so as to prevent him from getting the property by her appointment, and especially so when pressed by creditors who are aware that she has the power to appropriate it to the discharge of his indebtedness. There would be constant inducements for him to resort to persuasion, coercion and other means, to convert the property to his own use, and to withdraw the means appropriated to secure a support to herself and her children from its object. Nor is any reason perceived why a rule of construction should be departed from in this class of cases, which is applied to others, which is, that the expression of one thing is the exclusion of another. When the instrument creating the trust provides that it may be disposed of by one mode, it excludes all others, and when it provides that it or its proceeds may be appropriated to one purpose, all other purposes are thereby excluded. Then why, after declaring a particular mode or object, hold that any other mode and all other objects are embraced, unless they are prohibited by express language ? It appears to us that the true rule is, that the cestui que trust should be restrained to the acts authorized by the declaration of the trust, and that all beyond the power thus delegated, should be held to be void. This is, we think, more consonant with legal principle, and fully comports with justice and sound policy, and is sustained by the weight of authority.

It then remains to determine whether the trust deeds in this case, executed for the benefit of Castle’s creditors, when tested by these principles, were authorized by the marriage settlement. The settlement was made previous to, and in contemplation of, the marriage. It was for the settlement of the property owned by the wife, and the conclusion is irresistible that it was then the intention of the parties that the trust property should be placed beyond the control of the husband and his creditors, and also that of the wife, except for the purposes of the settlement. Otherwise there was no necessity of creating a trustee, as it would have equally required the assent of the wife to dispose of this property without as with the settlement.

The deed of settlement provides that the trustee shall collect, from time to time, the rents and profits of the trust estate, as often as, and whenever they may become due, and to pay them over to the wife on her sole ~ receipt, and free from the control and interference of any person whomsoever. It also authorizes the trustee to sell and convey the property, with the consent and approbation of the cestui que trust, expressed in writing, and to invest the proceeds in other personal, or in real estate, or deliver the same over to the cestui que trust according to her written directions. And that the estate so purchased, should be held by the trustee for the same uses and purposes, and upon the same trusts that are declared in the deed of settlement. The property was, by the deed, to be held by the trustee “ upon the special trusts, and for the uses and purposes, and subject to the obligations therein named, and none other.”

It is from these provisions, if at all, that the power to execute these deeds of trust is obtained. They only authorize the trustee to collect the money for rents and profits, and pay it to the cestui que trust, on her receipt, and when she may consent, in writing, to sell all or any portion of the trust property, and to invest it in other property, or to deliver the proceeds of such sale to her, according to her written directions. And this deed limits and restricts, in express terms, the property to the special trusts, and for the uses and purposes therein named, and for no other purpose. This negative language clearly brings this case within the rule of the English courts, prohibits the disposition of the trust property, and the application of the trust fund to any other purposes than those specified in the deed. The deed of settlement, neither expressly or by implication, authorizes the property to be sold, mortgaged, or in any manner pledged, for the payment of the debts of her husband. Nor does it give her the unlimited control of the property, but gives her the power to consent to its sale, and when sold, to direct the proceeds to be invested in other property, or to be paid to her. That the design of the parties was that the fund should, in no event, be applied to any other purposes than those specified, is made, if possible, more manifest by the provision, that if the cestui que trust shall survive the husband, then the trustee is required to reconvey the property to her. Then, and not till then, by the deed of settlement, would she have the absolute power of disposal of the trust property. By these trust deeds, for the benefit of Castle’s creditors, the objects of the trust would be defeated, as it is not done for investment, or to reduce the fund to money to be paid to Mrs. Castle, but it was to pay her husband’s debts. These conveyances produced no money, to be used and applied to the objects of the settlement, nor was it intended that they should. This was prohibited by the deed, as it was not within the objects named, and all other purposes are expressly prohibited.

The powers of the trustee and the cestui que trust are not derived from the husband, but from the person making the settlement, and declaring the trusts. The conditions annexed to a trust, pass with the estate, and when the conveyance is made to a trustee, for the use of a married woman, she may exercise the powers granted by the deed as effectually without the consent of her husband, as with it. The covenant of the husband, in this case, that the intended wife might dispose of the trust property, by deed, or will made by her, did not enlarge her powers—they, under the settlement, were reserved by her when she executed the deed of settlement, and the power to pledge the property, in this case, was not so reserved. A fair interpretation of our statute, authorizing married women to sell their real estate, by joining with their husbands in a deed of conveyance, does not authorize the sale of trust property contrary to the terms of the trust, nor does it enlarge the powers delegated to her by the instrument by which the trust is created. It may confer upon her the power of sale of trust property, conveyed or devised for her use, when the instrument by which she takes the beneficial interest in the property, is silent as to the mode of its disposition.

It is a well-recognized principle, that when the conditions of a trust deed have not been complied with, in a sale by the trustee, a court of equity will set the conveyance aside. Taylor v. King, 6 Munf. 366. Nor can the interest of the cestui que trust be impaired by a conveyance of the trustee to a third party for another and different trust, from those declared by the deed, under which he holds. Shepherd v. McEvers, 4 J. C. R. 136. And when the purchaser is affected with notice of the facts, which in law constitute the breach of trust, the sale is void as to him. Wormly v. Wormly, 8 Wheat. 421; Mechanics’ Bank of Alexandria v. Seaton, 1 Pet. R. 299.

The creditors of Castle were chargeable with notice—they were dealing with a trust fund, which they knew to be such, and it was their duty to know the extent of the powers of the trustee and cestui que trust over it. The deed under which they claim, describes Filkins as Mrs. Castle’s trustee, and this is evidence of notice that they were dealing with a trust fund, and they either knew of the terms of the trust, or should have known, and were bound to conform their acts to its terms. They had no right to give credit to the husband on the faith that the trust fund would ever be liable for its payment, and having acted in violation of the terms of the trust, and with notice, they have no right, in equity, to hold the property thus obtained.

It was also urged, that the settlement of this property upon Mrs. Castle was in fraud of creditors, as the money with which the land was entered and improved was that of her husband, and not hers. On this point, the evidence, we think, is insufficient to establish that fact. But even if it was, this settlement and the improvements were made long before these debts were incurred, and the deed of settlement was of record, and notice to the world. The indebtedness was not incurred on the faith that this property was liable for their payment, and these creditors have no right to insist upon such fraud, if it existed, to set aside the settlement. It was not made in fraud of their rights, and none but those who held debts at the time of its execution have such a right.

For these reasons we are of the opinion that these trust deeds are inoperative and void, and that complainant and her trustee are not bound by them. The decree of the Circuit Court is affirmed.

Breese, J., dissents. Decree affirmed.

Breese, J.

I concur in so much of the opinion delivered as establishes the practice in relation to considering substantial objections to depositions; but, much as I respect their judgment, in nothing more. I might admit that the decision of Chancellor Kent, in the case of The Trustees of the Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 77, though not law even for the State in which it was made, is the best rule, and establishes the correct doctrine, and yet this case, in my judgment, would not be affected by it, nor by the other cases of a like character, to which the court has referred, as they are based on it. I say so for the reason that, in this case, the complainant, Mrs. Castle, did not attempt to do with her property, as a feme sole, or pursue any other mode in disposing of it, than that specified in the ante-nuptial agreement, and that such disposition was in the exercise of powers she reserved to herself when she settled her property upon herself. The whole case depends, I think, upon the construction which should be placed on this agreement. What rights and powers did Emeline Bennett, now Mrs. Castle, the complainant, reserve to herself in this settlement ? Did she reserve the use of the property merely—in technical language, the usufruct—or the absolute jus disponendi ?

The court seem to think she reserved only the use. I hold she retained the absolute control. This is to be determined by the agreement. In this, as in all other cases of contract, the intention of the parties to the deed must govern.

It will not be denied that this settlement of complainant was upon herself, but to act in relation to it, through the intervention of a trustee. The deed is in the record; and is between Emeline Bennett, single woman, of the first part, Thomas Whitlock of the second part, and Edward H. Castle of the third part.

Let us now; examine carefully this deed. It recites that Emeline Bennett, being the owner of certain property, and about to marry E. H. Castle, is minded and disposed to transfer and convey her property to Thomas Whitlock, with the consent of her intended husband, E. H. Castle, “ in trust, for her own use and benefit.”

Is there any ambiguity about this language ? Is not the purpose for which the conveyance is made, clearly expressed ?

Whitlock consents to take the property upon the trusts declared in the deed—“ to have and to hold the said real and personal estate to the said Thomas Whitlock forever; but upon the special trusts, and for the uses and purposes, and subject to the powers and obligations following, and none other.” There is no ambiguity about this language. “None other” meaning for no other use than her own use. and benefit. Whitlock takes the property, and can hold it forever, but he must regard the special trusts under which he receives it, and regard the uses and purposes to which it is limited, and bo subservient to the powers retained by the grantor and bestowed upon himself, and regard the obligations he is under, and none other, as declared and specified in the deed. What are they ?

The first provides, that during the time that may transpire between the making of the deed and the solemnization of the marriage between Emetine Bennett and E. H. Castle, the trustee shall hold the property for her use, and pay the rents over to her, for her sole use.

The second provides only for the rents, income and demands of the trust estate, or any estate that might be substituted therefor, as thereinafter provided, that they shall be paid over to her, upon her sole and separate receipt, free from any control; and

The third provides for the sale of the trust estate itself, on the request, or with the approbation of complainant, in writing, or any part of it, and for the disposition of the proceeds. They are to be disposed of for two purposes—either to invest in other personal or real estate, or to be “ delivered over to the said party of the first part," according to her written directions. If a sale is directed by Mrs. Castle, and the proceeds invested in other real estate, as was the case here, then it is provided, “ that the estate so purchased shall be had and held by the trustee for the same uses and purposes as are declared concerning the property first mentioned, that is, for her own use and benefit.”

The fourth provides, that, on Castle’s death, the property held in trust at the time of his death, shall be re-conveyed to Mrs. Castle.

The fifth provides for the appointment of new trustees on certain contingencies.

Now it seems to me, the complainant, by these clauses, intended to retain, and did retain, the absolute control of this estate. She made no appointment of uses, except to herself, that is certain. It was her separate estate at the outset, with which she could do, before the contract of marriage, as her whim and caprice might dictate. She is “ minded ” to transfer and convey it, with the consent of her intended husband, to a trustee, for “ her own use and benefit.” The trustee accepts it with that understanding—the intended husband consents to the transfer, and to the trusts declared upon it, that upon her written request, and with her approbation, the trustee may sell the whole or any part of it. It is assented to and agreed by all the parties, that if sold, the proceeds shall be invested in other real or personal estate, or paid over to her, as she might elect, on giving written directions to that end. The estate first conveyed was sold, and the proceeds invested in the property known as the Park Avenue and Holstein property, conveyed to Swift as trustee for Castle’s creditors, by these deeds which the court has set aside and rendered null and void. Now this property, by the terms of the ante-nuptial agreement, was to be held by the trustee for the same uses for which the property described in the deed and first conveyed, was to be held, and that was, “ for her own use and benefit,” clearly preserving the character of the estate as it was when she conveyed it, that is, as her separate estate.

I put the question, what did Mrs. Castle reserve ? The mere use of the estate, when by the terms of the deed she could direct the property to be sold and put the proceeds in her own pocket ? Suppose she had directed it to be sold, and directed in writing the proceeds to be delivered to her, will it be contended those proceeds when delivered were still in trust— that the trustee is not discharged, and the purchaser under him would get no title which this court is bound to respect ?

It does seem to me that stronger or clearer language to express the intention of retaining absolute control over her separate*' estate could not be used. She declares the conveyance in trust is for her own use and benefit, and for no other, persons. She declares she may direct in writing a sale of the estate or any part of it, and if the trustee is not directed to re-invest, he must pay the proceeds of the sale over to her, if so directed.

This deed, if "a deed can do so, contemplates that under the forms prescribed’ in it, the grantor is, notwithstanding her marriage, a feme sole as to this property. There is no restriction whatever, of any kind upon her power. It was her separate property when purchased, and continued to be her separate property by the terms of the deed. So far from manifesting an intention to deprive herself of her power of disposal of this estate, or to retain the use of it only, the contrary is most clearly expressed. When the trustee receives the written directions of Mrs. Castle to sell the property and pay the proceeds over to her, and does so, he is, on that instant, discharged from the trust, for the property cannot retain its trust character, when the cestui que trust has come into possession of it lawfully. Can they be pursued and taken out of her hands, and she be compelled to surrender them to the trustee for investment in other real or personal estate, and is there any power on earth that could restrain her in the appropriation of those proceeds ? She alone had the power under the deed to direct a sale, she alone had the power to direct the appropriation of the proceeds, and in her disposition of them she was the sole judge as to the objects on which they might be. bestowed for her use and benefit, and of that she was also the exclusive judge.

Suppose the trustee, by her written directions, had sold the estate for thirty thousand dollars, that being about its value, and had paid the money over to her, where resides the power that could prevent her from paying these creditors with the money and discharging her husband’s indebtedness with less than one-third of it ? No such power exists anywhere. Then, if she could sell the estate and apply the proceeds in that most praiseworthy manner, why can she not encumber it for the same purpose ? Shall it be said that although the power is retained to sell absolutely, she shall not sell conditionally? The greater power includes the less, and there is no restriction in the deed. She being a feme sole as to the property, it being her separate estate originally, she cannot, any more than a man, have a certain, ascertained and indefeasible property, without having that power over it which the common law considers as necessarily incident to property, and that is, the power of disposing of it absolutely or conditionally. It is a truism, if a man is qualified to dispose of his property absolutely, he is qualified to dispose of it conditionally. It has always been held everywhere, where the common law obtains, and under all circumstances, the person for whose use and benefit property is held, can direct its appropriation, if not restricted, as to mode or purposes. This' is an universal principle, pervading not only all the books, but is a dictate of common sense. This, I think, is the first case where all the parties in interest, joining in a deed, executed with all the solemnities of the law, conveying that interest, and where no fraud is pretended, and no restrictions on the power to convey, imposed, are declared incapable of doing so, and their conveyance held to be null and void.

The property conveyed by these deeds to Swift, the appellant here, represent the property first conveyed^to Thomas Whitlock, and is held by Eilkins, his successor, for the same uses and under the same trusts as declared in that deed, the uses being for her own benefit—the trusts being that he would sell it on her written request, and either re-invest, or pay over the proceeds of the sale to her. If sold by her written directions, the purchaser would certainly get a good title, and if he pays over the proceeds to her, taking her receipt, he is forever discharged from the trust. With these proceeds, Mrs. Castle could found a charity, invest in stocks, or apply them to the noble purpose of relieving her husband from his embarrassments.

In the case of the Methodist Episcopal Church, so much relied on, Chancellor Kent admits the power of disposal by the wife, but insists on an observance of the mode preseribed by the deed to her. The whole tenor of that case is nothing more than this, that the deed of settlement required a deed in order to divest the wife of the property—she was so restricted by that deed, and therefore a mere parol gift to her husband was insufficient. No one can doubt, if there had been a deed from the wife, assigning to her husband the Hoyle mortgage in the form and mode prescribed by the deed of settlement, that the husband would have held the property. And such is the drift of almost all the cases cited.

The chancellor admits “ the cases are certainly in favor of the position, that a married woman is considered in -equity with respect to separate property as a feme sole, and is held to have an absolute dominion or power of disposition over it, unless her power of disposition be restrained by the deed or will under which she became entitled to it.” He then says: “ The next question then is, when does the deed restrain her ? I think she is to be deemed restrained, in the present case, to the modes of disposition mentioned, and that her husband cannot set up any less solemn alienation against her.”

That solemn mode exists in this case. The deed is made by Mrs. Castle, the cestui que trust, by Joseph Filkins, the trustee, and by Edward H. Castle, the husband, under all the forms and solemnities required by law, no fraud, duress or undue influence appearing, and no point made by the court on that suggestion, though, judging from the labor bestowed on it by complainant’s counsel, is what he deemed the strong point in the case, but which the court have ignored. What would Chancellor Kent have said in Jaques’ case, if he had ’ had this solemn mode of alienation ? Can there be any doubt what he would have said on such a fact appearing ?

The deed of settlement in Jaques’ case, does not differ very essentially from the one before us. In both, the absolute disposition of the property, to be manifested by a certain form of disposal, is to be at the pleasure of the wife-. In this deed, plainly appearing in the third clause, “ that the said trustee shall have power, with the approbation, or at the request of said Emeline Bennett, expressed in writing, to sell and dispose of the said trust estate or any part of it.”

This power is a continuing power, and attaches to all the investments that might be made by the trustee out of the proceeds of the property first conveyed, and Mrs. Castle’s power over it would continue to be absolute, through all the phases it might assume. This, indeed, is the complainant’s own construction of the deed of settlement, as appears by the bill of complaint, for she claims to have the deeds to Swift set aside, because they are not made for the purpose of re-investing the proceeds in other property, personal or real, to be held on the same trusts for the complainant, nor for the purpose of delivering over the proceeds to her, nor for the purpose of appropriating them in any way beneficial to her, but for the payment of money she was not bound to pay. This may all be, but she, having directed the property to be disposed of, in the manner and for the purposes directed in her written and solemnly executed deed, it is not now in her power to say it was not for her use and benefit. She determined that question for herself when she executed these deeds, and it is now too late to object. She has decided and acted, and there is no locus poenitentiae. This" construction of her deed of settlement, as claimed by the complainant, should estop her, and should prevent the court from granting the relief prayed. Her construction of the deed, seems to me inconsistent with the principles on which the court have granted the relief, for if she had the power of disposal, as she claims to have had, and insists she had by the bill filed, how can the court say, she had not this power ? She does not allege she had not the power, but that she has exercised it in a mode, and for a purpose, not contemplated by the deed of settlement. She does not ask the court to deny her the power—that is not the case she makes by her bill, and if she had asked it, the court could not grant it, for the reason that the court cannot make contracts for parties. This court has repeatedly decided, that a complainant in chancery must recover according to the case made by the bill. The complainant must be held to his own statement of his case, and recover on that, or not at all. McKee v. Bissett, 5 Gilm. 505; Morgan v. Smith, 11 Ill. R. 200; Rowan v. Bowles and Wife, 21 ib. 17. How then, I ask, can this court, in this case, permit this complainant to recover against her own showing ?

But to arrive at a proper understanding of this deed of settlement, the whole of it" must be considered, not detached parts of it, or obscure phrases. Is there no efficacy to be given to the covenant of the husband ? That is as follows :

“ And the said Edward H. Castle doth for himself, his heirs, executors, administrators, and assigns, covenant and agree, to and with the said Thomas Whitlock, in manner following: that is to say, that if the said intended marriage shall take effect, he, the said Edward H. Castle, shall and will permit and suffer the said Emeline Bennett to give, grant, and dispose of her said separate estate as she shall think fit in her lifetime, and to make such will, or other writing as aforesaid, and thereby to give, order, devise, limit, and appoint her said separate estate to any person or persons, for any trust, use, intent or purpose whatsoever; and that the person or persons to whom the said Emeline Bennett shall give or dispose any part of her said separate estate by her will, or any other writing that shall be signed, sealed, and executed by her in the presence of two or more credible witnesses as aforesaid, shall, and lawfully may, peaceably and quietly have, hold, use occupy, possess and enjoy the same, according to the true meaning of such gift and devise or appointment, without any denial, hindrance, or interruption of or by the said Edward H. Castle, his executors, administrators, or assigns, or any of them.”

I think this covenant* is entitled to great consideration in placing a construction upon the deed. • In marriage settlements like this, the object generally is to guard against the legal effects of a marriage, which, by operation of law, would divest a wife absolutely of her personal property, and take from her, during coverture, all control over her real estate. The motives of the wife can never be to guard against herself, but to retain dominion over her estate, and to prevent her intended husband from intermeddling with it any farther than she may choose to allow. The husband, by becoming a party to the deed, concedes away his marital rights. Now it would be strange indeed, if the husband entering into the deed, which would be of no effect if he did not, should not be permitted to control and qualify the deed by such conditions, restrictions, limitations and grants, as he may choose to couple with such consent. His part of the deed, assenting to the powers which liis intended wife reserved, must be used in connection with other parts of it, to ascertain the meaning of the whole. There are two covenants by the husband, the first clearly and explicitly yielding to the wife the absolute and unlimited control, with the sole restriction that her alienation of the property shall be by writing, signed and executed in the presence of two credible witnesses. The other is general in its terms, that she shall receive the rents and profits, and that he will not interfere with the trust estate, and sufficient of itself to indicate his consent to the settlement. Why then, it may be asked, was this special covenant inserted, if it was not for the purpose of more clearly defining her powers ? It must be regarded as a grant of power by the husband to the wife, of unlimited control, or at least an acknowledgment of such power. To arrive at the point of how much power the wife retained, or the husband granted to her, over her separate estate, we must not cast entirely aside a clause in which the husband, in plain language, covenants that she shall have certain powers, and which must attach to the property, whatever form it may assume. This is not allowed in construing such instruments. This covenant then, by the husband, is something more than mere form, and yields up to the wife the unlimited control of the estate.

And why should she not have the control? It is claimed it was her separate property at the outset, and being so, nothing can be more just than that she should control it, her husband consenting. .One purpose was, undoubtedly, as the courts say, to keep it free from, and unaffected by, the creditors of her husband, to which it might, if not settled upon her, be subject. It was not designed to tie it up, so that she could not dispose of it, hence the necessity for a trustee or an instrument of conveyance, if a sale was desirable. That a sale of the property was contemplated at some time, appears from another clause in the deed, not adverted to, which is, that the purchaser should not be required to look to the application of the proceeds. This was to render the property more saleable. Suppose the property should depreciate in value, and yield an income insufficient for her support, has she not the power to dispose of the whole or a part for such purpose, or for a marriage portion for her son or daughter, or to defend her title to the property, should it be attacked ? For these and all conceivable purposes she retains the control. It being her own property, no good reason can be given why she should not alienate at her pleasure, restricted only by the mode prescribed. Some one had the control of this estate, and if it was not the owner, who was it, under the various clauses of this deed of settlement ?

But upon the law of the case, and the rule as declared in Jaques’ case. I have examined all the authorities cited by Chancellor Kent within my reach, and I undertake to say, as the eminent counsel in the Court of Errors said, that before the decision by Sir It. Pepper Arden, afterwards Lord Alvanly, in the case of Socket v. Wray, in 1793, and on which the eminent chancellor so much relies, there is not a single decision or a dictum to be found in the. books, prior to that time, against the doctrine that the wife has the absolute ownership of her separate estate, under a settlement. Clancy, in his Treatise on the Bights of Married Women, says: “ That case seems to have been decided against the principle of all the authorities on the subject of the wife’s separate estate.” Clancy’s Rights of Married Women, 298. At page 301, he also says, that the decision is directly at variance with the doctrine laid down in some prior leading cases on the subject, and has not been followed in any subsequent case.

Lord Thurlow, with the greatest desire to put a restraint on the wife’s power of alienation, declared notwithstanding in the case of Ellis v. Atkinson, 3 Broke’s O. C. 347—565, that “ as the 2,000 pounds was in the absolute power of the wife, and no appointment intended for her children or other purposes, and it was evidently her pleasure to give it to her husband, lie did not see how he could prevent her.” He bowed to the authority of prior, decisions.

After the case of Socket v. Wray came the case of Whistler v. Newman, 4 Vesey, 129, and Mores v. Huish, 5 ib. 692, decided by Lord Loughborough siding with Socket v. Wray. These are the cases chiefly relied on in the Jaques case, and are the only well-considered cases that interrupt the current of decisions from the time of Lord Macclesfield down, and their influence was short lived. How it can be said that the English decisions “ are so floating and contradictory as to leave us the liberty of adopting the true principle of these settlements,” or why decisions of a century do not eliminate “ the true principle,” I am at a loss to discover. There are four or five- decisions only on one side, and more than fifty, by the most learned jurists, on the other. The decisions of Sir Pepper Arden and Lord Loughborough have not been followed by any of their successors, neither by Hardwicke, Talbot, Thurlow or Eldon. Lord Eldon, in Sperling v. Rockfort, 8 Vesey, 164, says: “ Wishing that the law may turn out for the protection of married women, to the extent in which it is represented in Whistler v. Newman, I find it impossible to reconcile all that is said in that case to former cases.” And in Parkes v. White, 11 Vesey, 209, he says: “ In Whistler v. Newman, if it is asserted that though Lord Thur-low, following his predecessors as far back as the doctrine can be traced, repeatedly decided upon this principle, this court has now a right to refuse to follow it, I am not bold enough to act on that position.”

Clancy, page 319, says that “ the two decisions of Whistler v. Newman and Mores v. Huish are quite contrary to the course of the authorities which were previous to them, and accordingly they have been overruled by the cases of Wagstaff v. Smith, 9 Vesey, 920, Sturges v. Corp, 15 ib. 190, Essex v. Atkins, 14 ib. 542, and the other subsequent cases.” He concludes by saying, page 321, “ It therefore may now be considered as the settled law of our courts of equity, that wherever property has been given to the separa