
    *Leake, Trustee v. Benson & als.
    September Term, 1877,
    Staunton.
    Absent, Anderson, J.
    Conveyance from Husband to "Wife-Wife’s Sepaa-ate Instate — Liability for Her By deed bearing date August 8, 1854, A in consideration of his affection for his wife M, and of his children born and to be born, of his said wife M, conveyed to B all his property-after payment of the debts he then owed — “In trust for the benefit of my wife and children aforesaid, giving, granting and conveying for my wife an estate for life, and at her death for my children an estate in fee simple, the whole of what belongs to me over and above my just debts being in trust conveyed to the aforesaid ly.” And he directed that none of the principal of the trust property should be expended during the life of his wife, unless Iy should think it necessary for the support of his wife and children. Buring A’s hfe he executed bonds in which his wife joined, and after his death she gave her bonds or notes for debts contracted by her. Upon a bill by these creditors to subject the life estate of M in the trust property — Heed: M took a Hfe estate in the property which may be subjected to satisfy the debts in which she joined, either as surety or piircipah
    By deed bearing date the 8th of August, 1854, William L. Anderson. >of the county of Culpeper, in consideration of the natural affection he bore his wife, Martha J. Anderson, and his children born or to be born of his said wife, conveyed to Shelton F. Leake all his property after paying his debts then contracted, “in trust for the benefit of my wife and children aforesaid, conveying for my wife an estate for life, and at her death to my children an estate in fee simple;” “with the proviso, that no portion of the principal of what is hereby *conveyed, ■shall be expended during the Hfe of my wife, the aforesaid Martha J. Anderson, but the interest or income only, unless in the judgment of the aforesaid trustee, Shelton F. Leake, it may be necessary and proper for the support and comfort of my wife and children to use the principal; in which case, he, the aforesaid trustee, for that purpose, shall have power in his discretion to expend or invest, as he may_deem best, the whole or any portioti of the principal herein conveyed.”
    This deed was duly admitted to record in the clerk’s office of the county court of Culpeper.
    William L- Anderson was killed in the battle of Malvern hills, and his widow removed to Charlottesville, in Albemarle county.
    During the lifetime of William L,. Anderson, he and his family lived on a farm in the county of Culpeper, a part of the trust property, and his wife joined him in executing certain bonds and notes, some of them given for the hire of slaves to work on the farm, and others for articles furnished them. After his death the farm in Culpeper was sold and the proceeds invested in a house and lot called Wertland, near Charlottes-ville, which was conveyed to Shelton F. Leake, trustee of Mrs. Anderson and her children, but without setting out any trusts in the deed.
    Mrs. Anderson having contracted some debts in Charlottesville, for which she gave her notes, which were not paid, and some of the debts which had been contracted in the lifetime of her husband remaining due, these creditors .brought actions at law against her, and recovered judgment; and executions upon them being returned “no effects,” the said creditors — Henry Benson and others— instituted their suit in equity in the circuit court of Albemarle, to subject Mrs. Anderson’s interest *in the said trust property to satisfy their judgments, claiming that she had a life estate in the property.
    An account of the debts and their priori-t;es, and also of the trust property was ordered and taken. The debts amounted, principal and interest, up to the 15th of October, 1574, to $753.70;’the only trust property was the house and lot called Wertland, valued at from $3,000 to $3,500, and its annual rent at $300.
    The cause came on to be heard on the 14th of February. 1876, when the court confirmed the commissioner’s report and held that Mrs. Anderson had a life estate in the property known as Wertland, and appointed commissioners to lease the same, either publicly or privately as to them might seem best, either by the month or the year, &c.; to collect the rents, and after paying the costs of the suit to deposit the residue in bank to the credit of the cause, &c., &c. From this decree iShelton F. Leake, the trustee, applied to a judge of this court for an appeal; which was allowed. .
    Leake, for the appellant.
    Blakely, for the appellees.
    
      
      Conveyance for Use of Wife and Ciiild —“Effect.—In Bain and Bro. v. Buff, 76 Va. 371, the principal case is cited as authority for the proposition that the words “for the sole and separate use of herself and cmld or children,” &c., do not give any estate to the child or children but indicate the motive for the gift to the mother, citing also Wallace v. Dold, 3 Teigh 258; Stinson v. Day, 1 Rob. 439, and Penn v. Whitehead, 17 Gratt. 503. See also the following cases, citing the principal case, Atkinson v. McCormick, 76 Va. 800; Mauzy v. Mauzy, 79 Va. 537; Richardson v. Seevers, 84 Va. 270; Stace v. Bumgardner, 89 Va. 421; Mosby v. Paul, 88 Va. 533; Seibel v. Rapp, 85 Va. 30; Walke v. Moore, 95 Va. 729; Waller v. Catlett, 83 Va. 200; Wilmoth v. Wilmoth, 34 W. Va. 433, 12 S. E. 731; Radford v. Carwile, 13 W. Va. 679.
      Wife’s Separate Estate — Intention to Charge. — In Garland v. Pamplin, 32 Gratt. 305, and note, the principal case is cited for the proposition that though the wife in order to charge her separate estate must intend to charge it, yet such intention is implied when she executes a note, bond or other instrument on the payment of money. Seee also, Miller v. Miller, 92 Va. 515, and as to 1 er powers of charging it, see Price v. Planters’ Nat. Bank, 92 Va. 468.
      Same- — of EataMf —Bor a discussion of the manner in which a wife’s separate estate is established by conveyances from her husband, see Harshberger v. Alger, 31 Gratt. 52, and Garland v. Pamplin, 32 Gratt. 305. See also, 2 Min. Inst. (4th Ed.) 650.
    
   Staples, J.,

delivered the opinion of the court.

The court is of opinion that the deed executed by William L. Anderson on the 8th of August, 1854, to Shelton F. Leake, trustee, vested in Mrs. Martha J. Anderson, the wife of the grantor, a life estate in the trust property, not jointly with the children of the grantor, but for the separate use and benefit of Mrs. Anderson. It was the intention of the grantor to give to his wife the trust property for her life, relying upon her discretion and affection for the children so to dispose *of the income as would most conduce to the support and comfort of the family. He very properly thought it was best to entrust her with the management and control of the property, rather than to raise unpleasant contentions between her and the children in respect to the proper use and application of the trust estate. The language of the deed in this particular is too plain to create a doubt as to the real purpose and meaning of the grantor. .

The court is further of opinion that no particular form of words is necessary to create a trust for the separate use of the wife. Whenever it appears from the nature of the transaction, or from the whole context of the instrument limiting the property to the wife, she is intended to take the sole use, that intention will be carried into effect. Bright’s Husband and Wife, page 310. Where the conveyance is by the husband to the wife, or a third person for her benefit, as a general rule it will be construed as operating to her separate use, although no such words are used as would be necessary to a separate estate in a conveyance by a stranger. Sayers et als. v. Wall, 26 Gratt. 354; Hulme v. Tenant, 1 Lead. Cases in Eq., Part 2d, 679, 733. The reason is said to be that otherwise the conveyance would be wholly inoperative. Whether this principle would apply in every case where there is a conveyance of the fee by the husband to the wife, or to a trustee for her benefit, may nQt be so clear. Upon -this point, it is unnecessary now to express an opinion.

In the present case it is apparent it was the purpose of the grantor to confer upon his wife a separate use in the life estate. In no other way can the deed take effect. For if upon its execution the martial rights of the husband attached upon the life estate of the wife, the whole object and design of the deed in providing for her and the children is necessarily defeated. The court, in order to give effect to the instrument, will construe it according *to the manifest intent of the husband, as conferring upon the wife a separate estate, free from the control and liabilities of the former, and subject to all the rules incident to such estates.

The court is further of opinion that whenever a feme covert, having a separate property, executes an obligation for the payment of money as principal or surety, it is to be presumed, in the absence of evidence to the contrary, it was her intention to charge such property with the debt. Burnett & wife v. Hawpe, 25 Gratt. 481; 26 Gratt. 878.

The debts which are the subject of controversy here, are evidenced by the bonds and notes of Mrs. Anderson and executed by her as principal, or as surety for other parties. It must be presumed it was her purpose to create a charge upon her separate estate, since in no other way can her acts have any effect. By the decree of the circuit court the accruing rents of the “Wertland property” are directed to be applied to the discharge of the debts in question, and in this we think there is no error. The decree is therefore affirmed.

Decree affirmed.  