
    Joanna Houston vs. M. D. Embry.
    1. Husband and wife. Deed to the wife in exclusion of the marital right. A deed of gift to a, feme covert “ to the only proper use and behoof” of the said feme covert, “ her heirs and assigns forever,” is wholly insufficient to create a trust for the separate use of said feme covert. The words are inappropriate to such a purpose, and from their use no such intention in the donor can be inferred.
    2. Same. Technical words. Intention, xllthough technical words are not ne-cesary to create a trust for the separate use of a feme covert, yet it is indis-pensible that the intention to create such a trust shall be clearly manifested, otherwise the marital rights of the husband will not be effected.
    FROM FRANKLIN.
    This was a bill filed in chancery at Winchester, by Joanna Houston, to recover of the defendant a slave she claimed by deed of gift from her father, William Smith. The deed was executed in 1819, and the slaves therein given were delivered to her, she being then a feme co
      vert, the wife of Jonathan Houston. The slaves given were Milly and Eliza; and the slave in controversy was Charles, the issue of Milly. It seems that the husband of complainant, at the time of the gift was intemperate and improvident. The words used in the deed of gift are, to the “said Joanna Houston, her heirs and assigns, to the only proper use and. behoof of her, the said Joanna, her heirs and assigns forever.” It appears also, that about the same time the donor gave to two of his sons certain slaves by deeds of gift containing the same words. The husband died in 1849, having sold and conveyed the boy, Charles, to one Simmons, by bill of sale, duly registered, who, in 1843 sold and conveyed said boy, Charles, to the defendant, who held him by virtue of said purchase until the filing of this bill, after the death of Jonathan Houston. The Chancellor, Rid-ley, decreed in favor of complainant, and the defendant appealed.
    Coltae, for the plaintiff in error,
    said:
    It is now well settled that technical words are not necessary to create a separate estate. Clancy, 262. 8 Merger, 33. 6 Humph., 487. It is also settled that the intention of the donor is to be gathered from the instrument itself and from the particular words. Bell, 476. The words here are: “To the only proper use and behoof of her, the said Joanna Houston, her heirs or assigns forever,” which I think are as strong as words can be not to be technical words. To her only use, or “ only proper use,” as clearly excludes every body else, as any language could to a -mind not versed in legal technicalities. “ To her sole use,” is sufficient. 1 Young, 562. 2 Story’s Eq., 1382.
    The definition of the word “sole,” according to "Walker, is, “ single, only; ” and according to the same author, the definition of “only” is “single,” “one and no more,” “this and no other.” According to Webster, the definition of “ sole ” is “ single, only; ” and according to the same author, the definition of the word “ only ” is “single, one and no more;” as “John was the only man present.” And then, in addition, we have the word, “propel’,” which means, peculiar, naturally or essentially belonging to asperson or thing, not common; as in this case, not common, but peculiarly belonging to the donee. Such is the import of this word, that in Hartley vs. Hcdle, 5 Ves., 544, the master of the rolls decided that the words, “to pay into her proper hands,” created a separate estate, and which opinion is quoted approvingly by Clancy, 267.
    Now, if we regard the donor as understanding ■ the import and meaning of the words he used, we cannot doubt his intention. He uses words that mean precisely the same thing that the technical words, do. And to a mind not versed in legal technicalities they would ■convey the idea of a separate estate as fully as the technical words themselves. If the estate conveyed, i& to be for her only use, clearly no body else has any interest in it, and clearly the marital right is excluded. ■Upon authority there can be no doubt about the case. The following words have been held sufficient to create a separate estate: .“ To pay into her proper hands,” 5 Vesey, 540. “To and for the sole use and benefit,” 19 Vesey, 416. And other authorities cited approvingly by Clancy, 267. “ For her own use and at her own disposal,” 1 Term, 222; Clancy, 268. “ For the livelihood,” -3 Atkins, 399; Clancy, .269. “To her separate use or disposal,” Cooper Eq. R., 283 ; 19 Yesey, 416; 2 Story Eq., 1382. “To her sole use and benefit,” 1 Younge Rep., 562; 2 Story Eq., 1382. “ITer receipt to he a discharge,” 3 Bro. Chancery Reports, 381; 5 Yesey, 517.
    The question, whether the words, “ to her own use and benefit,” are sufficient to .create a separate estate, has been considerably discussed. And in reading the elementary works one might suppose there was a conflict, but when we come to analyze all the cases it will be found that they can he reconciled. There are two cases where these words were held not to be sufficient; and which are sometimes cited as producing at least a conflict. The case of Willis vs. Layers, 4 Mod., 409; and the case of Roberts vs. Spieer, 5 Mod., 491. But these cases were both decided upon peculiar grounds. In the first case there was a bequest to a married woman, “ for her sole and separate use; ” and after-wards, in the same will, the residue was bequeathed to her “for her own use and benefit.” Sir John Leach, the Yice Chancellor, held that the latter words did not create a separate estate, because a previous part of the will showed that the testator actually knew what the technical words were, and therefore his Lordship cordd not infer that as to this legacy he intended what he had not expressed. And in. the second case, the testator bequeathed a legacy to a married woman, and then by negative words excluded the husband from all control over it. And afterwards, in the same instrument, bequeathed to the same woman $200, “ to and for her own use and benefit;” and it was decided that the latter words did not create a separate estate. These cases were both decided upon the same ground, viz: that the instruments themselves furnished evidence that the testator knew how to exclude the marital right by technical language, and nothing could be inferred against the husband when he had not done it.
    These cases, instead of being authority against the view I take of it, are, .in my judgment, in favor of it. They proceed upon the grounds, tacitly, that unless the instrument had shown upon its face that the maker knew the technical language, the words would have been Sufficient. But, aside from this reasoning, admitting these to be authorities against me, they do not affect the case. In 7 Yin. Ab., 96, the words, “to be at her disposal, and to do therewith as she shall think fit,” were held sufficient; and in PrichcwcL vs. Arms, where a legacy was given to a married woman, “ for her own use and at her own disposal,” it was decided that the words were sufficient.
    In the case of Lrnrib vs. Milnes, 5 Yesey, 517; and 1 Sup. to Yesey Jr., 410, the case of Jones vs. -, is referred to, where it was decided by the. master of the rolls, that a gift to the wife, “for her own use,” was sufficient to create a separate estate; and this decision seems to be approved by Olancy, 267. At page 268, of his work, Olancy, referring to a case in 1 Mod., where the words “ to and for her use,” were held not sufficient, says the same construction has been put on the words “ for her own use and benefit,” when the testator had used, with respect to other property, the technical language fit to confer a separate estate,” and then cites the cases of Willis vs. layers, and Roberts vs. Spicer, above referred to. As much as to say that “for her own use and benefit” would do except in that sort of a case.
    But one decision has been made' upon these words in the United States, that I can find after the most diligent search. That is the case of Jamison's Ea?r vs. Brady, decided by the Supreme Court of Pennsylvania, in 1821, and which has not been regularly reported, being still in manuscript; though the substance of the decision, and the reasoning of Chief Justice Tilghman, may be found in a note to Lamb vs. Mibnes, 5 Yes., 1 Am. ed., at p. 520. This reasoning, I think, is more satisfactory than .any I have seen. The bequest in that case, was, “I give to Martha Brady $2,000, for her own use.” The giving “it for her own use,” said Chief Justice’ Tilghman, “is an uncommon expression, and denotes some particular intention. If it had been intended barely to give the legacy, subject to the marital rights of the husband, it would have beeii sufficient to say, I give it to Martha Brady.’ But the addition of the words, for her own use, is tantamount to saying, “not for the use of her husband; because, if it was for his use it could not be for her own use.”
    
    Our own supreme court, if they have not decided upon these words, have approved the decisions made upon them. In the case of Hamilton vs. Bishop, in 8 Yerger, at page 40, Judge Green says: “A variety of expressions have been collected by Mr. Clancy, (pp. 263-268,) which will be considered a sufficient expression of the intention. As if the words used are, “to be at her disposal,” “ for her own use,” or “ that she shall enjoy and receive the rents and profits.” Any of these expressions being deemed equivalent to the words, “sole and separate use;” here, then, the judge says emphatically, that the words, “for her own use,” are equivalent to the words, “for sole and separate use. And now, if the words, “ for her own use,” “ or own use and benefit,” will do, it will not be contended, I imagine, that the words, “to the only proper use and behoof of her, tire said Joanna,” are not sufficient.
    The view I take in this case is much strengthened by the case above referred to in 8 Verger, and the case of JBecmforfs M?r vs Collier, 6 Humph., 48T. The first case was a gift by deed to a married woman, and the heirs of her body, of a negro woman and other personal property; to the use and benefit of the said Elizabeth and children, and to remain in the possession of said Elizabeth for the use and support of said children. forever. This was held to create a separate estate; the court recognizing the principle that ‘ technical language is not necessary, and that the question in all such cases turns upon the intention of the donor, to be gathered from the instrument itself. Compare the words of that case with the words in this deed, and it will be found that this is much nearer technical, and more fully conveys the idea of a separate estate.
    The case of Beaufort, adm?r, vs. Collier, was a bequest in a will. The words were, “for her and her heirs’ benefit.” And although the reason that it was given to her was fully shown in the instrument, yet, ■when the Court came to reason' about the words themselves, they say the gift for “her and her heir’s benefit, or in other words, Mor the benefit of Isabella and her children,’ of itself, plainly shows the intention to exclude the marital rights of any husband she might take.”
    Here the Court evidently put stress upon the word, heirs. It being doubtful whether the donor, or testator intended to exclude the marital rights of the husband, the fact that he used the word heirs, or gave it for the benefit of the heirs, (which, according to the understanding of most men, means children,) was looked to; knowing that most men think if property is given to a woman and her children, her husband can not dispose of it. Hot that the word heirs would be sufficient, but that it might be looked to in a doubtful case to ascertain the intention.
    W. E. Tenable, for the defendant in error.
    "William Smith, by deed, dated 19th March, 1819, gave to his daughter, Joanna Houston, two slaves, Eliza and Milly, “unto the said Joanna Houston, her heirs or assigns, to the only proper use and behoof of her, the said Joanna Houston, her heirs and assigns forever.”
    At the date of this deed Joanna Houston was the wife of Jonathan Houston, and so continued until about Eeb., 1849, when he died. He disposed of a slave, Charles, seven or eight years old, increase of Milly, to one Simmons-; from whom the defendant acquired Charles by bill of sale, dated 22d day of February, 1843, duly registered.
    
      'William Smith, by deed, dated 8th March, 1819, gave to William 8. Smith two slaves, Harry and Haney, with the same hdbendwm and tenendum, as in the deed to Joanna Houston.
    William Smith, by deed, dated 8th March, 1819, gave to his son, John L. Smith, two slaves, John and Philadelphia, with the same lidb. et ten. as in the deed to Joanna Houston.
    Complainant insists that the words of the tenmdwm and habendum in the deed from William Smith to Joanna Houston, vest her with a separate estate in the slaves, Eliza and Miliy, mother of Charles.
    Defendant denies this, and insists that he purchased Charles of A. Simmons, who purchased Charles of Jonathan Houston, husband of complainant; both paying a valuable consideration, and bills of sale accordingly are filed.
    1. Because the words of this hdbendwn have been immemorially used to convey estates in fee; and have never been cpnsidered as used to convey a separate estate to a feme covert.
    
    2. Because the maker used the same words to convey an absolute estate to his two sons.
    3. Because the words themselves, have never, in any instance, been used to convey a separate estate.' Story Eq., § 1382, and Hill on Trustees, 420, 421.
    4. Because the intention to exclude the marital rights must be clearly expressed. See Hill on Trustees, 420. Swan’s E., -—
    5. Because there is no trustee named in the deed.
   McKinney, J.,

delivered the opinion of the court.

The complainant’s bill alleges, that on the 8th day of March, 1819, her father, "William Smith, conveyed to her, by a deed of gift, two fpmale slaves, named Eliza and Milly; that at, and preceding the date of conveyance, she was a feme covert, wife of one Jonathan Houston; that her husband was intemperate and improvident, and therefore the intention of her father was to secure said two slaves, and their increase,'to her exclusive and separate use. That her covertmre continued until the early part of 1849, when said Jonathan Houston died; and that in his lifetime he squandered and disposed of said slaves, and their increase. It appears that a boy named Charles, the issue of Milly, came to the possession of the defendant in the year 1843, by purchase from one Simmons, to whom Jonathan Houston had conveyed said slave a few days before, by bill of sale. To recover this slave from the defendant, is the object of the present bill. The deed gives the slaves Eliza and Milly, to the complainant, “ to have and to hold the above named Milly and Eliza unto the said Joanna Houston, her heirs or assigns; to the only proper use and behoof of her, the said Joanna Houston, her heirs or a'ssigns forever.” And the question is, are these words sufficient to give the complainant a separate estate in said slaves ?

The cases upon this subject involve some very nice distinctions ; and in some instances, to say the least, would be extremely difficult to reconcile. It is well established, however, that although technical words are not necessary, yet it is indispensable that the intention to create a separate use or estate shall be - clearly manifested; otherwise, the marital rights of the husband will not be affected.

After an examination of all the authorities to which we have had access, we are of opinion that the words : “to the only proper use and behoof of her, the said Joanna Houston, her heirs or assigns forever,” are wholly insufficient to create a trust for the separate use of the complainant.

This is a set form of words taken from the complicated and redundant precedents of conveyancing formerly in use, which has long been regarded, even in England, as wholly useless; and in this country, under our simple forms of conveyance, as a mere unmeaning, useless form. The words are inappropriate to the. purpose of creating a trust for the separate usé of a married woman; and from their use, therefore, no inference of such an intention can be deduced. Words in themselves much more apt and significant, have been held insufficient to give a separate estate. A gift or bequest to a married woman “ for her own use and benefit,” or “ to pay the same into her own proper hands, to and for her own use and benefit; ” or, to pay annually “into her proper hands, for her own proper use and benefit,” have been held not to amount to a sufficient expression of an intention to exclude the marital rights of the husband. See 2 Story’s Eq. Jur., § 1383, and cases referred to.

The tendency of modern decisions seems to be, that more unequivocal evidence of the intention to create a separate use for a married woman ought to be required, than was formerly considered sufficient. Hill on Trustees, 420. 2 R. & M., 180. But the case before us does not require that we should make any intimation of our own views, as respects the tone of the modern cases upon this subject.

The chancellor having decreed for the complainant, the decree will be reversed, and the bill be dismissed, but without costs.  