
    John L. Cooper, Adm’r vs. Notley Maddox et al.
    
    Husband and wife. Rights of the next of kin to wife's acquisitions during separation. Act of 1825, ch. 10, §1. Expounded. The aet of 1825, ch. 10, § 1, annuls and destroys the marital rights of the husband, over the acquisitions of the wife during the separation contemplated by said aet, as completely, during the continuance of such separation, as would have been the case had the vinculum of the marriage been legally severed before such acquisitions were made. In the event the wife die intestate during such separation, and no reunion as contemplated in said act, intervene between such separation and her death — the husband acquires no right of succession to said acquisitions of the wife, but they go to the next of kin as distributees of said wife.
    FBOM RUTHERFORB.
    This was a bill of interpleader, filed by tbe complainant as administrator of Sarafr Maddox, dec’d, in ehancery at Murfreesboro’, seeking tbe direction and counsel of tbe court in tbe distribution of her estate.
    
      The intestate was the wife of Notley Maddox, to whom she was married in the year 1835. In the year 1837, she was compelled to separate herself from her husband, and seek shelter and support elsewhere, in consequence of his cruel treatment to her. Thomas F. Maddox, who is made one of the defendants to this bill, was the son, and only issue of said marriage. In 1848, the father of Sarah Maddox died, intestate, in the county of Butherford, and his estate was divided among his distributees, of which, the intestate, Sarah Maddox, had her share, consisting of personalty settled upon her to her sole and separate iise, and to the absolute exclusion of the marital right of her husband, by a decree of the chancery court. In her petition for this settlement of her interest in her father’s estate upon her, a divorce is not sought — and the decree of the court does not grant it — but recognizes her right to it. To this proceeding her husband and the distributees of her father’s estate were made defendants. During the separation, which continued during the rest of her life, from 1835 until 1851, the intestate maintained herself and child, Thomas F. Maddox, by the labor of her own hands, and received no assistance whatever from her husband. Soon after her death, in 1851, the defendant, Notley Maddox, came forward and claimed the estate in virtue of his marital rights. Thomas F. Maddox, as next of kin, and distributee also, set up his claim by his guardian. This bill was filed by the administrator to have the rights of the parties stated and adjusted. Chancellor Bidley decreed in favor of the rights of the husband, whereupon Thomas F. Maddox, by his guardian, appealed.
    
      Edwiit A. Keeble, for the complainant.
    Tbe questions for the court to decide, are:
    1. What effect does the act of 1825, ch. 10, §1, C. and N., 333, have upon the rights of the parties?
    2. The proper construction of the decree of the chancery court settling the property, as to the marital right of the husband.
    What is the combined effect of the statute and decree upon the rights of the parties?
    The act of 1825, provides “that it shall not be lawful for any officer to levy an execution upon any property which may be acquired by the wife in any way, when it is notoriously known that the husband has left or abandoned her, and driven her away from his home: or where she has separated from him in consequence of ill treatment, &c. Neither shall the husband interfere with, or dispose of the same. But in case she shall live with him again, the property acquired shall not be protected. C. & N. 333.”
    The decree perpetually enjoins the administrators of Thomas Moore, and the clerk and master of the chancery court from paying over any part of the proceeds of the personal or real estate to said Notley Maddox. Directs them to distribute and pay the same to Sarah Maddox, to the sole and separate use of herself, her heirs and assigns forever: all of which is settled and secured to the sole and separate use of the said Sarah, her heirs and assigns forever, free from the control or debts of her husband, Notley Maddox.
    The fund in controversy was acquired by the said Sarah Maddox under the statutes of descents and distó-butions, during tbe time she and her husband were Irving apart, in consequence of his conduct compelling her to withdraw for her safety.
    What operation does the act of 1825 have upon property acquired under such circumstances?
    That no creditor of Notley Maddox could touch it, nor could he interfere with, or dispose of it, unless in the literal terms of the act, the wife and husband should live together again. At the time of the separation, no marital rights of the husband had attached, for then Thomas Moore, the father, was living. If the husband and wife had lived together until the death of the wife’s father, the marital right of the husband, as tenant by the curtesy of the realty, and to reduce the personalty to possession, would have attached, subject, however, to be controlled and restricted by a court of chancery. But here, at the time of the accruing of the estate, they were living separate, and the statute effectually cut off, and prevented the rights of the husband from attaching at all until the happening of a contingency, (their living together,) that never occurred. The doctrine that all the estate, that was not taken away by settlement, remains to the husband, does not apply; for the statute does not propose to limit any right that had accrued to Mm; but to prevent a prospective, probable, or possible right from attaching at all.
    If this view of the statute be correct, then, no marital right of the husband existed, as to this fund at the death of the wife; and it must, therefore, pass under the statute of distributions to the next of kin.
    That the husband is not next of kin to the wife, and does not in that character, succeed to her personal estate, but tabes tbe same, de jure mariti, bas been frequently decided both in England and America, particularly in tbe States of North Carolina and Tennessee. Watt ys. Watt, 3 Yesey, 246. Sugg ys. Tyson, 2 Hawks, 480, and Loftus ys. Penn, 1 Swan, 451.
    Tbe principle held by tbe courts, that notwithstanding tbe statute of distributions, tbe husband is entitled after tbe death of tbe wife to recover her personal property; or, if you •will, to retain her separate property; must be found in some right that controls tbe statute. In England tbe statute of 29th, Charles 2d, preserves his right; but we have no such statute, and, therefore, it must be referred to some existing and established legal right in the husband overruling any statutory disposition of the properly. But here, the act of 1825, has left no subsisting right, but leaves the parties with respect to this property, as if the wife were a feme sole. It would be difficult to conceive a subsisting right to property, where the owner of the right could not interfere with or dispose of it; where his creditors could not reach his interest, and where it would not be necessary to limit the right by a court of chancery to secure her equity to the wife. Such an anomaly, the courts could not recognize in the law; the very absurdity of the proposition, illustrates that there was not in the husband at any time an inherent right sufficient to control the statute of distributions.
    The case of Brown's adm'r. vs. Provm's adm'r, 6 Humphreys, was a case of contract, made in contemplation of marriage — and the principle that what is not taken away by the settlement, remains to the husband, might well apply. The agreement to marry, vests the husband (intended) with an inchoate right to have the wife’s property as part of the consideration of his contract, which could not be defeated without his consent upon the ground of fraud. The fact that the husband’s consent is necessary to a settlement made, after agreement to marry, proves that he has an interest of some character, the disposition of which required his consent. Under the statute of 1825, the husband forfeits all his rights, leaving in him none of the attributes of ownership or interest in the property accruing to the wife. The statute was passed to remedy a mischief, that was at war with the proprieties and sacred relations of life, and should be construed remedially, to effect the object. To permit the husband to have an interest in the estate, would have the effect to relieve him from the burdens of duty, and to reward him for his dereliction. Such a construction of the law would defeat the policy of the statute.
    2. The terms of the decree settling the property, excludes the marital right of the husband during the life, and after the death of the wife. As in the case of a contract, bond or statute, it is to be construed according to the apparent intention of the court, to be gathered from the scope of the record. From the record, appears the unkindness of and the abandonment by the husband. That he was dissipated and improvident, and for many years had made no provision for his family; that the wife never intended to live with him again, and this was her estate. During this separation for life, the law, without the assistance of a court of chancery, protected her in its enjoyment. Did the court mean simply to give her a life estate, with remainder to tbe husband? That was accomplished at all events, and upon any construction, by the statute. It could not have meant to do what the law declared before; it must have had some efficient and ulterior object; some intention of making the existing provisions of the statute more effectual for the protection of the wife and for the punishment of the husband. To have any force at all, the decree must have been prospective, its operation commencing when the effect of the statute ceased. The word “forever” in this decree, means something more than in the case of Brown vs. Brown. Unlike its meaning in that case, it denotes the duration instead of the quality of the estate. In view of the law, as it stood in the statute book, it must refer to the exclusion of the rights of the husband, or have had no meaning at all. And I conceive the rule to apply to a decree as well as to a deed, wiE or statute, that every word, if possible, shall have its force.
    It is further, very manifest, that the words in this decree are very different from those employed in the settlement discussed in Brown vs. Brown, 6 Humph., and Stewart vs. Stewa/rt, 7 Johnson’s Chan. Rep. 246. In the first of these cases, the words are “ To be and remain the property of the said Elizabeth, and subject to her control and disposal forever.” And in the last the words used are, “In trust for the future use and benefit (of the wife) free from the control (of) by the husband or any other person she might marry; and shotdd reconvey the estate as she, with the assent of the husband, should nominate.”
    In neither of these cases, were any words used excluding the marital right, except such exclusion as may be implied by the creation of a separate use. Whilst in the last, there is a recognition of some subsisting right in the husband, by providing for his assent to a recon-veyance. But in the case at bar, there are not only express excluding words, but a limitation to some future persons, under the designation of heirs, for anemo est hceres viventis.”
    The word heirs, as used here in reference to personal property, is not a technical word of limitation, denoting the quantity of estate taken by the wife; but must be understood as synonymous with and denoting next of kin, in which case the husband would be excluded. Ware vs. Sharp, 1 Swan, 497. Sugg vs. Tyson, 2 Hawks N. C. Bep., 481. 2 Spence’s Equity, 497.
    The decree in this case, is in the words of the settlement in Sugg vs. Tyson, recognized and acted upon by this court in Ware vs. Sharp. In that case the conveyance was to the use and behoof of Susannah Williams, her heirs and assigns forever. The husband survived the wife and died, and the court decided that the marital right was excluded and adjudged the property to the representatives of the wife.
    There is one other ground upon which this fund may be decreed to Thomas E. Maddox, upon established principles. The husband and father had abandoned the wife and child without making provision for their support. The consideration for which the law gives him the wife’s property is, their living together and maintaining their children. If these ends are defeated by his bad conduct, the consideration fails. The same law suspends his interest in the wife’s property, and a court of equity interferes and preserves such of the wife’s property as is within its jurisdiction for her family. 1 Roper on Husband and Wife, 278.
    It has been a contested question, whether the children have any substantive and independent right to a provision out of the wife’s property where she has not obtained a settlement in her life. Lord Hardwick doubted the right; Lord Northington decided against it; Sir Thomas Sewell decreed it, and Sir William Grant considered the weight of authority in favor of the right, saying that “there was a great deal of authority against the decision of Lord Northington.” Vide, Atherly on Marriage Settlements, 354. 13 Yesey, 6. Be that as it may, it is settled, that a settlement in favor of the wife is' always extended to the children. And if the wife obtain a decree, and dies before its execution, it must be executed in favor of the children. Atherly, 354. 3 Yesey.
    This case affords the most stringent reasons fot the application and enforcement of these rules against the father and in favor of the child. Here is the dereliction of conjugal duty, the cruelty and abandonment, the failure of the consideration, which entitled the husband to the wife’s property. Here is the wife’s decree liable to be enforced in favor of the child, who claims an equity in purity and innocence. On the other hand, the husband and father comes under ill auspices, to move the conscience of the court. He drove the wife from his hearth, and abandoned his child. The instincts of his nature for these endearing ties were less strong than those of the brute. He comes, after cruelty, desertion and neglect, with their accumulating sorrows have carried the wife to an untimely grave and forever relieved him from the. burden of duty, to rejoice at her death, as the dawn of his fortune, and to prove that the story of Saturn, devouring his offspring, is no longer a fable.
    The faithless husband, the unnatural father, the profligate man, and abandoned citizen, claims from a court of conscience, all that the truthful, honest and tender husband and father could demand. He expelled where he had sworn to shelter ; tyrannised where he vowed to protect; abandoned where he had pledged to cling. And forgetful of the laws, natural and revealed, he soils the ermine of the courts by asking that, which should be awarded only to fidelity to the obligations and duties of life. To yield him his demands, cannot be law, .because it would be unjust, for where the law is supposed to work injustice, it is the law misunderstood.
    
      W. IT. WiseNER, for the defendant, N. Maddox,
    said:
    Whenever in such case there is no limitation as to the personalty of the wife, disposing of it at her death, it goes to her administrator, and the husband, if he administer, is not bound to distribute. 6 Verg., 44. 3 Humph., 628. 6 id. 127. The case of JETamrico vs. Lair l et al., 10 Verg. 222, does not conflict with this doctrine, but indeed sustains it. If any other person administer, he holds the estate in trust for the husband, and must pay it to him. 6 Verg., 44. 3 Humph. 628. 1 Johns. Ch. B., 243, 246.
    There must be something in the settlement limiting ¡the property at the death of the wife, which clearly indicates an intention to exclude the marital rights, altogether, or the property will go to the husband. Brown vs. Brown, 8 Humph,, 127. , 10 Yerg., 222. Eor the court cannot take away the right of the husband to the personal estate of the wife, when it is not taken away by the settlement, or by the exercise of the power of appointment under it. When the settlement makes no disposition of the property, in the event of the wife’s death, and provides only for her dominion over it during coverture, the right of the husband as survivor is a fixed and stable right, over which the court has no control, and of which he cannot be divested. The settlement cannot be extended by construction beyond the just and fair import of its provisions; and clearly the court cannot construe a settlement or disposition of property, in violation of the jus mariti when none has been made by the party. 7 Johns. Ch. R., 246. And that when the wife’s dioses in action, ©r other personal property, over which she has control by settlement, is left undisposed of after her death, the husband who survives her, must of course take it, and with as good a right and title in law, as the heir takes the undevised estate of the ancestor. 7 Johns. Oh. R., 245, et seg.
    Indeed, it has been held, that the descent of the property must be broken. 7 Johns. Ch. R., 247. The case in Johns. Oh. R. has been cited with approbation by this court, in 6 Yerg. 44. 10 Yerg. 222. 3 Humph., 628, and 6 Humph., 127. There is nothing ~ in the case of Evans vs. Gillespie, 1 Swan, 128, conflicting with this, nor in the case of Loftm vs. Penn, 1 Swan, 445, but those cases are rather in. affirmance of the doctrine contended for.
    There is nothing in the decree settling the property on Sarah Maddox, excluding the husband’s marital rights after her death, nor breaking the descent — the language is to her, “her heirs and assigns.” Then if there is nothing in the decree excluding the husband’s-marital rights, does the act of 1825, ch. 10, C. & N., 333, protecting the wife’s property when living apart from her husband, from being levied on for his debts, exclude his title to the property? Clearly not. Then it is clear that the decree of the chancellor in favor of the husband was correct and should be affirmed.
   McKiNNEY, J.,

delivered the opinion of the court.

This ease presents a question which turns alone upon the construction of the act of 1825, ch. 10.

The state of faets, upon which the question arises, is this: The complainant’s intestate, Sarah Maddox, was the wife of the defendant, Notley Maddox. The marriage took place in the year 1835, and in 1837, said Sarah was compelled, by reason of the violence and: cruel treatment of her husband, to abandon his residence, and she continued to live separate and apart from him until her death, which happened in September, 1851, leaving her husband and one child, Thomas E. Maddox, the only issue of the marriage, surviving her. The wife supported and maintained herself and child, from the separation till her death, by her own exertions and means, without aid from the husband, who wholly neglected to make any provision for either of them.

In 1848, John Moore, the father of said Sarah Maddox, died intestate, in Rutherford county, leaving a considerable estate, real and personal, to be distributed among his children. Shortly afterwards, said Sarah Maddox filed her bill against her husband and the other distributees and representatives of her father’s estate, to have her share thereof settled upon her to her separate use, to the exclusion of the husband’s marital rights. The bill sets forth all the facts in relation to the separation and the causes of it; but no decree for a divorce, or separation, is sought in terms. The decree in the cause recites the fact of separation and the causes, approvingly, but no divorce or separation is decreed. But it absolutely excludes the marital rights of the husband to the entire share of the wife in her deceased father’s estate, and settled the same upon the wife, “to the sole and separate use of the said Sarah, her heirs and assigns forever.”

The complainant, Cooper, administered on the estate of said Sarah Maddox, and received into his hands about the sum of $1,900 00 from the assets of her estate. To this fund opposing claims are set up: on the one hand, it is claimed by the husband in virtue of his marital rights; and on the other, by said Thomas F. Maddox, who denies the marital right of the husband, and insists that he is alone entitled to the bind as sole distributee of his deceased mother’s estate. And this bill is brought by the administrator to obtain the direction of the court as to which of the parties is entitled to the fund, both being properly be■fore the court, and this is the question for our determination.

On common law principles it is clear, that, upon the state of facts here presented, the administrator would be considered as holding the fund as trustee for the husband. There is nothing in the decree settling the property on the wife to her separate use, which can affect the rights of the husband so far as respects the question now under consideration. The vinculum of the marriage is not in any respect affected by the decree, but remains as before. In the most liberal view, the decree can be regarded as .nothing more than a judicial recognition of the right of the wife to lire separate from her husband. But even if a separation had been positively decreed, it would not, of its own proper force, have affected the husband’s common law right, through an administration on her estate, to reduce into possession for his own benefit, such of her oTioses in action as had not been reduced into possession during the coverture.

The question then is, does the act of 1825, work any change in the relation of the parties as respects the wife’s property, acquired in either of the modes therein stated?

This statute (varying a little the collocation) provides, that where the “husband has either left and abandoned (his wife) or discharged, or drove her from the place of his home and residence; or where she, the said wife, may have left and separated herself from the home and residence of her husband, and lives separate from him in consequence of receiving from him, her said husband, personal abuse, or violent, and ill treatmentin either case, “ any property which may have been acquired by the labor, care and industry of the wife; or that she may receive by descent, gift or otherwise,” subsequently to such separation, shall not be subject to execution for the husband’s debts “neither shall the, husband interfere with, or dispose of the sarrnP

It is declared in a proviso, “that this act is not intended to protect, or to secure to the wife, the enjoyment of any property which she may have acquired previously to the separation having happened as aforesaid;” but the same shall remain liable to the payment of the husband’s debts. And it is declared furthermore, that “in case she shall again live with her said husband, after such separation, then the property acquired by her as aforesaid,” (that is acquired after the separation) “ shall be subject to his debts, and shall not be protected under the provisions of this act.”

The precise effect intended to be given to this act, is a question of some difficulty. The act is inexplicit and leaves much room for construction. If, however, effect be given to it at all, it must be held to work an important change, as well in respect to the status of the wife, as her rights of property. It places the wife in a new condition. It is a legal authority to her, without a judicial determination declaring a dissolution of the marriage tie, or even a separation from bed and board for an indefinite period; to separate and live apart from her husband; and to acquire and hold property independently of, and adversely to him. This is certainly an anomalous condition, but yet such a one as it was within the legislative competence to create,

It will be observed that the act does not assume to displace the husband’s marital right wherever it may actually have attached, this it carefully guards against. Its operation is confined merely to the exclusion of the right where it has not yet vested. It proceeds upon the ground, as we suppose, that the voluntary renunciation of all the marital obligations and duties on the part of the husband, ought to be followed by a forfeiture, to some extent at least, of the corresponding marital rights. And however counter this may be to the harsh, not to say arbitrary and unjust, principles of the common law governing the rights of this domestic relation, who will say that it has not a just foundation in a sound and enlightened policy, as well as in the dictates of natural justice.

The act was intended to effect something more, on the wife’s behalf, than an enlargement of her previously existing right in equity to have her ¿hoses in action secured to her separate use. It contemplates a more valuable and enduring benefit than the mere suspension of the marital right during the life of the wife; the design of the law was, in our opinion, to exclude the right absolutely and forever; unless in the single contingency provided for, that is, in case she should voluntarily resume her former relation by returning to live with him; then of course the right would attach upon her acquisitions during the separation, in like manner as it attached upon her personal property in possession ppon the marriage. Such would have been the legal consequence of a re-union, upon established principles, without the aid of this provision; still, however, this provision is important to show the intention, that, in no •other event should the right attach.

If tbis view of fcbe statute be correct, the wife must be regarded, to this extent^ as plaeed in the condition of a feme solej and endowed with the legal capacity to acquire and hold property, with all the dominion and incidents of ownership, as against the husband, his creditors, and all other persons in the particular circumstances provided for. And as a consequence of this construction of the statute, its operation will be to exclude the husband’s right of succession, upon her death, as effectually as would a decree dissolving the bond of matrimony. The acquisitions of the wife, after the separation, in either of the modes recognized by the statute, can no more be claimed by the husband, after the death of the wife, than in her lifetime; because, in the case provided for in the statute, the marital right is as completely destroyed as it would be by a decree of absolute divorce. If we are right as to the reason of the law — the forfeiture of the husband’s rights, by reason of his wilful refiisal to discharge the duties imposed by the relation — it would be absurd to admit any claim on his part to the property of the wife after her death.

It is obvious that other consequences must follow from this construction of the statute, which need not here be noticed. If they shall be found to be against public policy, the corrective power is in the hands of .the legislature.

The result of our opinion is, that Thomas E. Maddox, as distributee and next of kin to the deceased wife, is entitled to the fund in the hands of the administrator, and it will be bo decreed.

Decree of the chancellor reversed.  