
    M. Woolsey Borland, as Sole Surviving Trustee of Sarah Lloyd Coit, under a Certain Trust Agreement, Respondent, v. Francis C. Welch, as Executor, etc., of Sarah Lloyd Coit, late of the City of New York, Appellant.
    
      Marriage settlement — construed not to cover property acquired by the wife after the husband’s death.
    
    A marriage was contracted at a time when it was effective to pass to the husband the absolute title to the personal estate of the wife, in view of which condition . of the law a marriage settlement was made to that end, as stated in it, that all the private fortune of the intended wife should be limited and appointed to the trustees for her benefit in the manner prescribed in the settlement, which conveyed all the property of the wife derived, or to be derived, under a certain will, “or which she may at any time or ..times hereafter derive, either by bequest, devise, descent, distribution, gift or otherwise howsoever,” upon certain trusts. The instrument contained no directions to the trustees concerning the disposition of the income or the use of any property which should vest in them under it after the marriage should come to an end by'the death of the husband, if that situation arose, except that it made provision for the issue of any subsequent marriage, from which it might fairly be inferred that it was not the intention of the parties to the instrument that the estate of the trustees should cease if the wife should become a widow, but should continue in view of the possibility of her contracting a subsequent marriage.
    
      Meld, that the marriage settlement accomplished its defect when given a construction by which it was restricted to such estate as the wife should acquire during her coverture, and did not require a construction which would include within the conveyance property acquired by the wife after her husband’s death.
    The general rule isjhat in the construction of such an instrument, words of conveyance of .after-acquired property of the wife must, in the absence of words showing a contrary intention, be read as though the words “during the coverture ” had been inserted in the instrument.
    Ingraham, J., dissented.
    
      Appeal by the defendant, Francis C. Welch, as executor, etc., of Sarah Lloyd Coit, late of the city of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of February, 1899, upon the report of a referee, except in so far as it provides that the securities mentioned in the complaint are subject to a lien in favor of the defendant, for the payment to him as executor of 28839/2028839 of the value of said securities, to be fixed by a sale in case the parties cannot agree, and except in so far as the sum awards costs and allowance in addition thereto to the •defendant.
    
      Edward E. Sprague, for the appellant;
    
      John L. Gadwalader, for the respondent.
   Rumsey, J. :

On the 3d of November, 1838, Hiss Sarah Lloyd Borland, as party of the first part, entered into a contract with Henry Coit, of the second part, and John Borland and George Sprague, of the third part, in the nature of a marriage settlement, the occasion being the anticipated marriage between Miss Borland and Mr. Coit, and the object of the settlement being to transfer to the parties of the third part, as trustees, all the property of Miss Borland to hold for her benefit. The marriage took place, and the parties continued to live together as husband and wife until 1880, when Mr. Coit died. In 1896 Mrs. Coit received by will the sum of $20,000 which she delivered to certain persons for investment on her account. It was invested, and so continued until her death in 1898. She left a will by which she appointed the defendant as executor, and he qualified in that capacity. As such executor he claims to be entitled to the proceeds of the investment of the $20,000 which Mrs. Coit received in 1896. The plaintiff, as trustee under the marriage settlement, also claims to be entitled to the' same money, and he has brought this action to obtain a judgment that the defendant, as executor of Mrs. Coit, be directed to transfer the property to him and be restrained from taking it into possession or making any claim upon it. Issue was joined in the action, and upon a trial .before a referee it was decided that the plaintiff -was entitled to the relief demanded, ánd judgment to that effect was accordingly entered, from which this appeal is taken.

The marriage settlement in question recites that a marriage wag-expected to be solemnized between Hiss Borland and Mr. Coit, and that Miss Borland, being' then -of the age of twenty-one years, would become entitled under the will of her grandfather,. James Lloyd, to-receive, when she reached the age of twenty-five years, a certain legacy which .seems to have been a considerable sum of money. The settlement then recites that it was distinctly agreed and understood between Miss Borland and Mr. Coit that all her private fortune, from whatever source derived, should be settled, conveyed, limited and appointed in the manner- thereafter expressed in the settlement. After these.recitals it was agreed that-,, in contemplation of the said intended marriage, and in consideration of the uses, trusts- and purposes expressed in the paper and other considerations therein recited, the party of the first part (Miss Borland), with the. full knowledge and consent of the party of the second part (Mr. Coit), conveyed to the. parties of the third part -and their heirs and executors “ all and singular the private fortune, property and estate whatsoever and wheresoever, both real and personal, of her, the said party of the first part, as derived' or to be derived from the last will- and testament and codicil of the said James Lloyd, deceased, or which she may at any time or times hereafter derive either by bequest, devise, descent, distribution, gift or otherwise howsoever, from any source or sources, person or persons, whatsoever or whomsoever, other than the said party of the second part,” in trust, to pay the income to Mrs. Coit and for certain other purposes more particularly expressed in the instrument, and to which it is not now necessary especially to refer. The- instrument is a very long one and contains particular directions as to the conduct of the trust, the manner of payment of the income and regulating the powers of the trustees, and, among other things, an agreement on the part of the intended husband that he will do whatever may be necessary in order to vest the said trust property or any part thereof in the trustees, and especially agreeing that, when Miss Borland shall have attained the age of twenty-five years, he will do everything necessary' to settle and appoint the-fortune and estate to which she will then become entitled in the trustees, “ and so in like manner in regard to every accession of fortune which may accrue to the. said party of the first part during her lifetime.”

The plaintiff claims that the true construction of this instrument is not only to transfer to the trustees all the estate of which Miss Borland might be possessed at the time of the solemnization of the marriage, and all of which she might become possessed during her coverture, but, in addition, all other property of which she might become the owner at any time after the death of her husband, except what she might receive from him; and that, as the legacy of $20,000 was not received from him, it passed to the plaintiff as trustee by virtue of the marriage settlement thus construed. The defendant, on the contrary, insists that the true construction of the instrument is to give to the trustees only such property as Miss Borland might own at the time of the marriage and such other property as she might become the owner of during her married life, and that no property which she might become possessed of after the death of her husband was intended to pass or did pass by the instrument.

The referee adopted the first construction of the instrument, and the question is whether his conclusion was correct.

We have not found it necessary to consider to what extent the instrument in question shall be said -.to be void at law as to after-acquired property of Mrs. Ooit or the conditions which must exist before a court of equity will determine that such property shall vest iii the trustee; for we assume that if, by the true construction of the instrument, it was intended that property acquired after the coverture shall pass, a court of equity will find no difficulty in carrying into effect that intention of the parties. The single question, therefore, which we have considered, is whether, by the true construction of the instrument, such after-acquired property passes.

At the time the instrument was made, the rule of law, as is well known, was that, immediately upon the solemnization of the marriage, there passed to the husband the absolute title to every particle of the personal estate which the wife might own, subject only to the condition that he should reduce it to possession while the marriage existed. He had also an estate for life in her real estate, and the possession and control of it, and the right to receive the rents and profits during the marriage,.with certain rights' afterwards, which it is not necessary to consider. (2 Kent Com. 130, et seq.) After the death of the husband, if the wife survived him, the personal .property did not vest again in the widow, but it went as property of the husband, either in accordance with his will, or to his next of kin, to the exclusion of the next of kin of the wife. This -condition of affairs existed so long as the marriage lasted; but, of course, whatever property might come to the wife after the death of her husband1 belonged to her personally, as though she were single. It was in view of this condition of the law that this marriage-settlement was made, for the purpose, as stated in it, that all the private fortune of the intended wife should be limited and appointed to the trustees for her benefit in the manner prescribed in the settlement, and for those purposes, the effect of which was ■to take it out of the power of the husband and devote the income solely to the wife, and give her the right to dispose of it by will. To attain these objects it was necessary only that the trustees should receive, the title to that property, which might come to the wife during the existence of the marriage. Upon an examination of the paper, w;e find that the active duties of the trustees with regard to the disposition of the. income, so far as the wife is concerned, are limited to the said marriage. They, are to hold the property for the separate use and benefit of Mrs,. Coit; for and during the said marriage, and to. pay over to her the income therefrom. They are to permit her, during the said marriage, to use and en joy all household furniture and personal property which she may have received during that time. They are to permit her, and the party of the second part, during the said marriage, to occupy, free of rent, any residence which shall be given to her, or which shall have been purchased for her by any person except her husband.. The instrument contains no directions to the trustees as to the disposition of the income, or the use of any property which shall have vested in them under -it, after the marriage shall have come to an end by the death of Mr. Coit, if any such thing shall happen, except that it makes' certain provisions for the issue of any subsequent marriage, from which it may fairly be" inferred that it was not the intention of the parties to the instrument that the estate- of the trustees should cease if Mrs. Coit should become a widow, but should continue in-view of the possibility of her contracting a subsequent marriage, in which case the existence of their title would prevent the vesting of the property in the second husband. Except for the inference arising from that provision, it would be almost conclusively presumed that, as in case of the dissolution of the marriage by the death of the husband, no duties remained to be performed by the trustees, their estate would come to an end, as was held to be the law in Hepburn's As Appeal (68 Penn. St. 468). While, therefore, we cannot accept that case as authority for the conclusion that the trust was determined by the death of the husband, yet what is said in it as to the object for which the instrument was created, may fairly be considered as bearing upon the intention of the parties, which is to be ascertained in its construction.

The important consideration is that the instrument was made to protect the interest of the wife during the time while, because she was a wife, the law took away all her right to control her personal property during her life, or to dispose of it at her death; and that for that purpose only was it necessary that this trust estate should be created. This object is accomplished by restricting the words used to such estate as she should acquire during her coverture; and it is not necessary to give the instrument any more extensive meaning to carry into effect the intention of the parties. In view of that object, which is always understood in marriage settlements, and which is practically avowed in this settlement, it has come to be a rule of law that words of conveyance or transfer of after-acquired property of the wife must, in the absence of words showing a contrary intention, be read as though the words during the coverture ” had been inserted in the instrument. Such is the well-settled law of England. (In re Edwards, L. R,. [9 Ch. App. Cas.] 97; In re Campbell's Policies, 6 Ch. Div. 686 ; Howell v. Howell, 4L. J. Ch. 242; Reid v. Kenrick, 24 id. 503.) The cases of Pickmson v. Pilboyn (L. R. [8 Eq.] 546) and Garter v. Garter (Id. 551) recognize the rule, and there is but one case, so far as the books show, in England, in which the contrary rule has been .adopted. That is Stevens v. Van Voorst (17 Beav. 305), and that case is expressly overruled in the two cases first above cited. So far as there is any authority on this subject in this country, the same interpretation has been given to those instruments. (Steinberger’s Trustees v. Potter, 18 N. J. Eq. 452.) In view of these decisions and the undoubted fact that the intention of the parties to be drawn from the instrument in question is carriéd out by'limiting the'transfer of the wife’s property to that which shall be acquired by her during the coverture, we feel bound to construe the instrument as ineffectual to transfer property.Acquired by .her after the coverture, and for that reason to reverse the judgment entered upon the decision of the learned referee, with costs.,

As the decision is a short one, and there can be no question about the facts, we are át libérty, under section 102.2 of the Code, to direct a proper judgment to be entered, and judgment, therefore, must be reversed-, with costs, and judgment entered dismissing the complaint,: with costs.

Van Brunt, P. J., Barrett and O’Brien, JJ., concurred ; Ingraham, J., dissented.

Ingraham, J. (dissenting) :

A careful' study of the marriage ■ settlement, under' which the . question presented in this case arises, has brought me to-a diff erent conclusion from that of a majority of the court. , There seems to he-no dispute-that, where an instrument assumes to transferjiropertythereafter to be acquired, it-is ineffectual as a grant to pass the legal . title, but a.court of equity will construe the instrument as operating, by way of present" contract' to give a lien which, as between the parties, takes effect and attaches to the subject of -it as soon as it conies into the-ownership of the party; arid will enforce that lien by decreeing a conveyance of the property when that lien attache's. (Kribbs v. Alford, 120 N. Y. 519, 524.) By this marriage settlement the party of the first part, in- terms, transferred all and singular her-private fortune, property and estate which she may at any time or times hereafter derive, either by bequest, devise, descent,-distribu- " tion, gift or otherwise from any source or sources, person or persons, whatsoever or whomsoever, other than the said'party of the second part, whether the same be- now in possession, reversion, remainder^" contingency,, expectancy or otherwise howsoever.”-

The grant or transfer being in "equity a covenant -to give a lien which, as between the parties, attached -to- the subject of; it as soon-as it-came-into the" ownership of the covenantor,- the only question to be determined is whether, by the instrument • itself, the parties intended that the property which accrued to the party of- the first part to the agreement at any time during her life was included within this grant. Much stress is laid in the prevailing opinion upon the object of this instrument, and it is assumed that, its object was to transfer . to the trustees all the property belonging to Miss Borland, to be held for her benefit; that the instrument was made to protect the interest of the wife during the time while, because she was a wife, the law took away all her right to control her personal property during her life, or to dispose of it at her death; and that for that purpose only was it necessary that this trust estate should be created.” I think the instrument itself shows that it was the intention of the parties to accomplish something more than this by the execution of the instrument. Upon the marriage of the parties the husband would have been entitled to all the personal property of the wife to which she would have become entitled during coverture. He relinquished that right, which was substantial, as it appears from the instrument itself that Miss Borland would be entitled upon arriving at the age of twenty-five years to a legacy from her grandfather. In the absence of such a settlement, Mr. Coit would have had the right to dispose of the property belonging to his wife, or to which she should subsequently become entitled during coverture, by making provision for his children or others, without regard to his wife’s wishes, and to place any , such property absolutely beyond her control. This right he relinquished, and such relinquishment was an ample. consideration for any promise or agreement which the wife should make as to the disposition that should be made of property which should accrue to her, or to which she should, at any time; become entitled. An agreement by her to dispose of the property to which she became entitled after the death of her proposed husband, as well as before, would be enforcible in equity and would be binding upon- her. If, therefore, . .the marriage settlement clearly and in express terms evidences the intention of the parties that all the property to which Miss Borland • should become entitled during her life, whether during coverture or after it had ceased, should be disposed of under the marriage settlement, it seems to me that it is the duty of a court of equity to enforce such agreement; and in my opinion this intention is clearly expressed in the instrument itself.

This principle is sustained by the English authorities. In Dickinson v. Dillwyn (L. R. [8 Eq.] 546), where the covenant in a marxiage settlement applied expressly to any property which the wife or her husband in her right should become entitled to under the will or intestacy of, or by gift from, her father, the vice-chancellor held that a legacy from the-wife’s father, to which she became entitled after the coverture-had ceased, was bound by the terms of the instrument. It seems to he settled, however, and I assume the rule tó be, as stated by Lord Justice Jambs (Matter of Edwards, 9 Ch. App. Cas. 97), that such a covenant, prima facie, “is to be supposed not to be intended to apply to' property, the wife’s title' to which does not accrue.until after the husband’s death;” “ that in the absence of any expressions shewing that a covenant of this nature was intended to have a more extended operation, it is to be construed as if' the usual words -c during the said intended coverture ’ had been inserted.” It is, therefore, necessary to find in this marriage settlement an intention that the covenant as- to future acquired property should have a more extended operation than if the words “ during the said intended coverture ” had been inserted.

In the first place, it seems ifco me that some effect should be given to the omission of these “ usual words,” especially in an- instrument of. this character which shows upon its face that it was prepared by an experienced draftsman, and which contains most careful provisions for carrying into effect the intention of the parties. The recital in the instrument expressly states the agreement which had been arrived at between the parties to the proposed marriage. It is there stated that, “ whereas, upon the treaty for the said marriage between the said parties of the second and first parts, it was distinctly agreed and understood that all and singular the private fortune of the said party of the first part (the wife), whether derived, or tó be at any time or times hereafter derived, from or under the will or codicil in part above recited of .the'said testator, or from any_ other source. or sources whatsoever, and whether now in possession, remainder, reversion, contingency, expectancy or otherwise howsoever, should-before the solemnization of the said marriage be vested, settled, arranged, conveyed, limited and appointed in the manner or to the effect hereinafter expressed arid contained.” Thus, the parties ha-d agreed that all the private fortune of the wife derived from any source or sources whatsoever, and whether then in possession or' otherwise, should not be held for the benefit of the wife during coverture, but should, be vested, settled, arranged, conveyed, limited and appointed in the manner or to the effect provided for by the settlement. It was t-lie private fortune of the wife, whenever received by her, that was to be settled and disposed of under the terms of this agreement, and this private fortune of the wife was to be the private fortune which she was then entitled to or which she was to become entitled to at any subsequent period.

The instrument, then, conveyed all property that the wife then had or to which at any.subsequent time she should become entitled, “ or which she may at any time or times hereafter derive, either by bequest, devise, descent, distribution, gift or otherwise howsoever, from, any source or sources, person or persons whatsoever or whomsoever, other than the said party of the second part (the husband), whether the same be now in possession, reversion, remainder, contingency, expectancy or otherwise howsoever.” No words could have been chosen, it seems to me, which would more strongly express the intention of the parties to include within this marriage settlement all of the property to which the wife should at any time during her life become entitled without relation to the continuance of the coverture. And the subsequent provisions of this instrument show that such was the intention. The intended husband did, as before stated, by the instrument resign all power to make any disposition of this property to .his own children; but the instrument provided that if' children should result from the marriage then contemplated, those children should be entitled to a portion of the property to which the wife should become entitled and which should come under the provisions of this settlement. For, by the subsequent terms of the agreement, it was provided that the wife should have power and authority at any time during such marriage, and, •notwithstanding the same, to make and execute her last will and testament, or an appointment in the nature of a last will and testament, in the same manner and with the like effect as if she were unmarried ; provided, further, that such will and appointment be made and executed in favor of the issue of said marriage or any subsequent marriage of the said party of the first part, and that she should have full power and authority to bequeath or appoint the said trust premises to and among her said issue in such unequal or equal shares and portions as. she may deem-proper in regard to any or either of her descendants. Thus it was expressly understood that this trust should continue beyond the period of the coverture, and that the wife should have the power to bequeath of appoint the property held in trust under the instrument among her issue ; thus assuring to the children of the husband all of the trust property, except upon the contingency of the wife’s marrying again and having children by the - subsequent marriage. But even in that event his children, were to have a portion of the property to which the wife should become entitled. . There is nothing to show that this was 'intended to be limited to the property to which the wife should become entitled during the coverture; but, on the contrary, the language is so broad as'to include all property which she ever should become entitled to. Her husband thus secured to his children the right to the property which should accrue to the wife at any time during her life. .

The agreement also contains a convenant that the husband and his heirs, executors or administrators shall and will at any time or times hereafter make, do or execute every or any lawful act, deed, matter or thing which may be reasonably required of him in order the more effectually to vest the said trust premises or any part thereof in the said parties of the third part in trust for the said party of the first part or to carry these presents into full and complete effect according to the true intent and meaning thereof, and especially when the said party* of the first.part shall have attained her age of twenty-five years he wiír jlien execute and perform any and every lawful act, deed, matter \r thing which may be reasonably required of him in order to settle, limit and appoint according to the true intent and meaning of these presents the fortune and estate which the said party of the first t part will in that event become entitled to under the said will a(nd in part recited first codicil of the said James Lloyd, deceased — and so in like manner in regard to every accession of fortune which may accrue to the said party of the first part during her lifetime.”

Here, was a distinct recognition of the fact that the fortune of the party of the first part which was to pass und'er this marriage settlement was to be the fortune that should accriie to the party of the first part during her lifetime ; and her husband and his representatives after his decease covenanted that, as-to such fortune,-they would join in all instruments necessary to assure that such further property, acquired by the wife during her lifetime, should vest in the trustees and thus become a part of the trust estate.

There'is another provision of this instrument which I think is suggestive, and that is the one which authorizes advances by way of out lit to any one or more of the issue of the party of the first part, either by the said contemplated marriage or any subsequent marriage, thus clearly recognizing the necessity of this provision, as all of the property of the wife coming under the provisions of the trust, she would have no property of any kind to dispose of for an advancement to her children under the proposed or subsequent marriage. The provision of the instrument immediately succeeding provides for the payment of the income of the trust fund to the party of the first part (the wife), and that is not limited at all during coverture, but is to continue during her life. In every .clause in this marriage settlement where the property of the wife is mentioned it is spoken of as all the property which is at any time to accrue to her, and I cannot see how it could be more strongly and clearly expressed. .

For these reasons, in addition to those stated by the referee in his opinion, I think the judgment was right.

Judgment reversed, with costs, and judgment ordered dismissing complaint, with costs.  