
    
      Matthews & Co. v. Woodson and Others.
    January, 1844,
    Richmond.
    (Absent Brooke and Allen, J.)
    Husband and Wife* — Marriage Settlements — When Husband Mere Trustee for Wife — Case at Bar. — By deed of marriage settlement, personal property of the wife is conveyed to the husband for the exclusive benefit of the wife and her children during her life, and at her death for her issue, if any then living; and it is provided that in the event of the wife’s dying without issue, the property shall be distributed in the same manner as if the deed had not been made. Upon the death of the husband without children (the wife still living), a creditor of the husband, at whose suit the latter took the oath of insolvency, claims that the husband has an interest in the property, which may be charged in the event of the wife’s dying without issue. Held, the conveyance to the husband was merely in the character of trustee, and its effect was to intercept the marital rights of the husband, and preclude him from all beneficial interest during the existence of the trust; that the provision for the event of the wife’s dying without issue looked not to the state of things existing at the time of the marriage, but to such as should exist at the death of the wife; that the purpose was in such event to divest the legal title conveyed to the husband as trustee, and let the personal estate stand upon the same footing as any other personal chattels of a wife not reduced into possession by the husband during the coverture; that if the husband had survived the wife, he would have had a right to administer upon her personal estate, and hold the same free from distribution; but in the event that actually occurred, of the survivorship of the wife, the husband at no time acquired any individual ownership of the subject.
    By a deed made the 31st of December 1833, between Judith P. Christian of the one part and Charles Woodson of the other part, it was recited, that a marriage was intended to be solemnized between the said Charles Woodson and Judith P. Christian, and it had been agreed between them that the property of every description then owned by the said Judith P. should, previous 602 to *the said intended marriage, be conveyed and settled in the manner and for the uses and purposes therein set forth; and it was thereby witnessed that the said Judith F. Christian conveyed unto the said Charles Woodson all her property, consisting of land, slaves and other personalty, in trust that “during the life of the said Judith F. the said Charles Wood-son shall hold the said property, and every part thereof, for the sole and separate use and benefit of the said Judith P. and her children, if any she shall have, and apply the profits thereof to and for her sole and separate use, and the use and benefit, maintenance and support of her children, if any she shall have; and after the death of the said Judith P. the said Charles Woodson shall hold the same in trust for the use and benefit of such child or children as she may bear, and may be living at the time of her death; and if she shall have children, and any one or more should die during her life leaving issue, then such issue shall be entitled to the same portion of the estate as the parent would if still living; and after the death of the said Judith, if she shall leave children, the said estate shall be divided and delivered to them by the said trustee as soon as their interest may require it; and if the said Judith P. shall die without issue, then the said property shall be distributed in the same manner as if this conveyance had never been made.” The deed then contained a clause declaring that the property, its increase and profits should be held by Woodson for the purposes aforesaid, and should not be liable for any debts or obligation of his, either before contracted or thereafter to be contracted, and that Woodson, notwithstanding the intended marriage and coverture of the said Judith P., should permit her to have the benefit of, use and enjoy the said property, its increase and profits, in common with her children if any, in like manner as if she were an unmarried woman, and that the benefits thereby secured to her she 603 was to have as might *suit her best, either in the use and service of the said property, or in the rents, hires or other profits thereof, if it should be thought most advisable to rent or hire it out. And Wood-son covenanted that he would not subject the property, or its increase or profits, to the payment of his debts; that he would not sell the slaves or land without her consent, free and voluntary, first had in writing ; and then that he would appropriate the proceeds to her sole and separate use, either by purchasing other propert3’, to be conveyed to the same uses before set forth, or in such other way as might better suit the convenience and necessities of her and her children, if any she should have. The marriage took place soon after the deed was made, and the deed was immediately proved and recorded.
    Soon afterwards, to wit, on the 25th of January 1834, Woodson, being- in custody under a -writ of capias ad respondendum issued against him by William Matthews & Co. for a debt due them, confessed judgment in the clerk’s office of Amherst, and thereupon took the oath of an insolvent debtor and was discharged.
    Woodson had possession of the property specified in the deed until his death ; but after that event the said Judith E\ had the possession.
    In March 1836, a bill was filed in the circuit court of Amherst by Matthews & Co. against the sheriff of Amherst, in whose custody Woodson was when he took the insolvent oath, and against Judith If. Wood-son and Charles Woodson’s administrator, insisting that when Charles Woodson took the insolvent oath, all his beneficial interest in the property passed by operation of law to the sheriff; suggesting that it would not be proper for the sheriff to sell the contingent interest of Woodson in the property without the direction of a court of equity; and asking that the question of property might be decided.
    604*The ground taken in the bill is, that Woodson had the legal title to the property, which he held in trust for the separate use of the wife and her children (if she should have any) during her life, and at her death to the use of the children if any, if not, the land to the use of the wife’s heirs, and the personal property to his own use, he being the person that would be entitled to it if the deed had never been made.
    The defendant Judith S'. Woodson answered, that her object in making the conveyance was to secure the property therein conveyed, and its profits and increase, for her own exclusive use and benefit, and that of her children should she bear any, and if not, for the benefit (at her death) of her next of kin, to the entire exclusion of the said Charles Woodson, his creditors and legal representatives, in any event and under any circumstances whatsoever. And she insisted that such was the legitimate construction of the conveyance. She contended that the trust confided to the said Woodson by the said conveyance was a mere personal one, coupled with no interest, and terminated at his death; and that neither the personal representative of the said Woodson, his heirs, or his creditors, had any claim to or interest in the said trust fund, or any part thereof.
    The circuit court, being of opinion that Woodson, under the marriage settlement, took no interest, present or future, vested or contingent, but was a mere trustee without the least beneficial interest, made a decree, on the 7th of September 1836, dismissing the bill of the plaintiiTs, and adjudging them to pay the defendant Judith S'. Woodson her costs.
    On the petition of Matthews & Co. an appeal was allowed.
    The cause was argued by C. Johnson for the appellants, and Beigh for the ap-pellees.
    
      
      Husband and Wife. — The principal case is cited and approved in Coatney v. Hopkins, 14 W. Va. 354. See also, monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
   ^BALDWIN, J.,

delivered the following as the opinion of the court:

The court is of opinion that the effect, as well as the intent, of the deed of marriage settlement in the proceedings mentioned, was to intercept the marital rights of the husband in regard to the property thereby conveyed, and to preclude him from all beneficial interest in the subject during the existence of the trusts declared by the deed. The property of the wife was conveyed to the husband merely in his character of trustee, for the exclusive benefit of the wife and her children during her life, and at her death for her issue, if any then living. It is true the deed provides that in the event of the death of the wife without issue, then the property should be distributed in the same manner as if the conveyance had never been made. But this provision looked not to the state of things existing at the time of the marriage, but to such as should exist at the death of the wife. In the event of her death without issue, its purpose was to divest the legal title conveyed to the husband as trustee, and confer the property upon those then entitled by law in her right. The result would be the descent of the real estate to her heirs, and the succession to the personal estate of those designated by law : and the personal estate would stand upon the same footing as any other personal chattels of a wife not reduced into possession by the husband during the cov-erture. If the husband had survived the wife, he would have had a right to administer upon her personal estate, and hold the same free from distribution amongst her next of kin. But in the event that has actually occurred, of the survivorship of the wile, the husjpand at no time acquired any individual ownership of the subject. He had not, and could not have during the coverture, any possession of the property in his character of husband; and he moreover never acquired any beneficial interest therein.

*The court is therefore of opinion that the claim of the plaintiffs, as creditors of the husband, to subject a supposed contingent interest in the personal property conveyed by said deed, is without foundation ; and that there is no error in the decree dismissing their bill.

Decree affirmed.  