
    LOUISE G. SMITH vs. J. HARRY THOMPSON, JENNIE THOMPSON, PERCY THOMPSON, AND MINNIE A. THOMPSON.
    In Equity. —
    No. 4340.
    I. The rule may now be considered settled, wherever the chancery jurisdiction exists, that a married woman is to be regarded as a feme sole in respect to her separate property, and that she may dispose of it as she pleases, unless her power of disposition is restricted or limited by the deed or will creating her interest.
    II. Where the beneficiary in a trust-deed is a married woman, and there is no restriction upon the mode in which she shall alienate the property only that the trustee shall join in the deed, this limitation has no reference to a devise, and her testamentary capacity in regard to said property is complete to all intents and purposes.
    I. By virtue of the act of Congress regulating the rights of property of “married women, passed April 10,1869, a married woman may dispose of her entire property, constituting her separate estate, whether such property was acquired before or after coverture.
    STATEMENT OF THE CASE
    Bill to quiet title upon the following state of facts:
    On the 1st of June, 1867, John O. Evans conveyed to the defendant, Moses Kelly, three snblots in square 247, in the city of Washington, in trust for Jane Thompson, wife of defendant, J. Harry Thompson. The trust is expressed in these words: “ In trust, nevertheless, for the sole use and benefit of the said Jane Thompson, and for no other person whatsoever, and only to be conveyed by her or her heirs joining in the deed with said trustee.”
    Jane Thompson died on the 10th of February, 1872, seized of the equitable title to said lots, and by her last will and testament, bearing date January 24,1871, and duly admitted to probate and record on the 26th of February, 1872, she gave and bequeathed the sum of $5,000, to be equally divided among her four children, the defendants, J. Harry Thompson, jr., Percy, Jennie, and Minnie A. Thompson, to take effect when said children shall have attained their majority, and constituted said bequest a charge upon said above-described real estate, and directed that the same should be sold and conveyed, at the discretion of her executor, to satisfy said bequest, and devised said real property, subject to the foregoing charge and any prior legal incumbrance, to her husband, the defendant, J. Harry Thompson, in fee-simple, and constituted and appointed her said husband executor of said last will and testament.
    Subsequently, on the 15th of April, 1873, the defendant, Kelly, trustee as aforesaid, conveyed to the defendant, J. Harry Thompson, said real property in fee-simple.
    It also appears that the defendant, J. Harry Thompson, subdivided said three lots into lots 58 and 59, and the trust-deed was released as just stated, and thereupon the complainant became the purchaser of lot 59 for the sum of $20,000, and received a deed of conveyance, executed bysaid Thompson, giving back a trust-deed on the lot to secure payment of the purchase-money; that the lot purchased by complainant is improved by a very valuable and handsome private dwelling-house, and that the adjoining lot (58) is in the possession of and owned by the defendant, J. Harry Thompson, and is also improved by a handsome and costly private dwelling; that the valueof complainant’s lot (59) and improvements is $10,000 and upwards; and that complainant has expended in and about the same and has become liable for improvements to the extent of $10,000 and upwards, in addition to the original cost of said property, as aforesaid; that at the time of the purchase she was a married woman, the wife of Morgan L. •Smith, since deceased; that she was ignorant of the condition ■of said title, and of the incumbrance existing thereon; that she relied implicitly upon the representations of the defendant, J. Harry Thompson, and also of her friends in respect to said title.
    Complainant alleges that, by reason of the death of her said husband, she has been unable to pay two of the notes described in said deed of trust, which have matured during the present year; that, in order to pay the same, and also the greater portion of the debt secured by said deed of trust, she made an arrangement to borrow the sum of $12,000, to be secured by deed of trust upon said real property; but an examination ofthe title to thesameresulted in areport adverse thereto, upon the ground that Jane Thompson, at the time she executed her last will and testament, had no legal capacity to devise the said real estate, and that, in order to perfect the complainant’s title to the property so conveyed to her by the defendant, J. Harry Thompson, it is necessary that the testamentary capacity of Jane Thompson in respect to this property should bejudicially ascertained and determined. There areotherfacts connected with the case in respect to legacies, incumbrances, &c., not necessary to an understanding of the decision, and are therefore omitted in this statement.
    At the hearing, the justice holding the special term dismissed the bill without prejudice, and from that decree the complainant appealed to this court, and the case is now here on said appeal.
    
      R. K. Elliot, for complainant, presented the following points and authorities:
    Questions raised by the record in this cause are:
    3. Whether Jane Thompson, the testatrix, had testamentary capacity in respect of the real property conveyed to complainant by defendant, J. Harry Thompson, either by virtue of the terms of the deed from Evans et wx., to the defendant, Kelly, as trustee, or by virtue of the provisions of the act of Congress of April 10, 1869, relating to the rights of married women in the District of Columbia, or both ; and
    2. Whether, if said testamentary capacity shall be established, said real property should be wholly discharged from the legacies charged thereon by said testatrix in favor of her children ?
    On behalf of complainant, it is respectfully submitted:
    1. By the terms of the deed of 1867 from Evans et ux. to the defendant, Kelly, in trust for Jane Thompson, the testatrix, the latter acquired an equitable fee in the property in question. The only limitation of the power of disposition contained therein is in these words: “ In trust, nevertheless, for the sole use and benefit of said Jane Thompson, and for no other person whatsoever, and only to be conveyed by her or her heirs joining in the deed with said trustee.” This clearly refers to the power of the trustee (Kelly) to convey, and limits the exercise of that power, subordinating it to- the will of the cestui que trust, or her heirs, and therefore she had power to convey independent of the statute, and so she had power to devise. Buchanan vs. Turner, 27 Md., 1. Jaques vs. The Methodist Episcopal Church, 17 Johns., 577; Cooke vs. Husbands, 11 Md., 492.
    A married woman may, in equity, dispose of her separate property in favor of' her husband. Story’s Eq. Jur., secs. 1395, 1396.
    In all cases where a power of disposition is reserved to a married woman by means of a trust, which is created for the purpose, she may execute the power without joining her trustees, unless it is made necessary by the instrument of trust. Story’s Eq. Jur., sec. 1390, and authorities cited in note. If, however, the paper-writing is not good as a will to pass real property, yet it is good as an execution of the power of disposition clearly implied by the deed of 1867. 4 Kent’s Com., 335; 3 Johns., 551; Churchill vs. Dibben, in note to 9 Simons, 447; 1 Hoff. Ch. R., 2; Heyer vs. Burger, 3 Ves., 299. It is submitted, however, that if Mrs. Thompson had no testamentary capacity, as to this property, by virtue of the terms of the grant from Evans et ux., in 1867, and that her will is not even good as an execution of the power plainly implied by that grant; yet, according to the true intent and meaning of the act of Congress of April 10,1869, she was invested with power of disposition over this property, notwithstanding it was acquired by her prior to the passage of said act. That statute is purely remedial in its nature, and was copied from similiar acts in the States. It was designed to enlarge the rights of married women in the District of Columbia in respect of their separate property, and although it cannot lawfully be so construed as to divest rights previously acquired in the property of a married woman, yet, where no such rights intervene, the act confers the most ample power of disposition on the part of a feme covert as to her separate properety, without reference to the period when it was acquired; for it says ■“ belonging to her at the time of marriage or acquired during marriage.” Where, however, the rights of the husband have attached, she has power of disposition subject to those rights, and this is understood to be in effect the construction given the act by this court in Kimbro vs. The First National Bank, 1 MacArthur, 61. (See, also, Sykes vs. Chadwick, 18 Wall., 141.) It being a remedial statute, it should be so construed as most effectually to meet the beneficial end in view, and to prevent a failure, and as large and broad a construction is to be given as can be done without doing violence to its terms. Potter’s Dwarris on Statutes, 231 et seq. and note; Sedgwick on Statutory and Constitutional Law, 359.
    Such an act, so far as respects the power of disposition conferred by it upon a married woman over her separate property, relates as well to property acquired prior to its passage as to that which was acquired subsequent thereto. Van Wert vs. Benedict, 1 Bradf., 114; Tyler on Infancy and Coverture, 720.
    
      R. T. Morsell for defendant J. H. Thompson.
   Mr. Justice MacArthur

delivered the opinion of the court:

Tho first question to be examined in this case relates to the testamentary capacity of Jane Thompson at the time she executed her will, on the 24th day of January, in the year 1871. The real property devised in her will constituted, without any doubt, her separate estate. The deed of trust made in 1867 by Evans and wife conveyed the property to the defendant Kelly, in trust, nevertheless, for the sole use and benefit of said Jane Thompson, and for no other person whatever, and only to be conveyed by her or her heirs joining in the deed with the trustee. It will be observed that there is no restriction upon the mode in which she may dispose of the property, except that of the trustee joining in the deed, and he was called upon to unite in the deed only when the property was to be conveyed. His assent was not required when she should otherwise dispose of it. Although, therefore, the limitation would apply to a conveyance, it clearly does not refer to a devise; and having the right, jus disponendi, she may use that right in any manner not absolutely prohibited by the deed under which she claims. Jaques vs. Methodist Church, 17 Johns., 585, and the authorities there cited. Mr. Story expresses the same doctrine at section 1394, Eq. Jur. The trust-deed is therefore to be construed as giving her the right to dispose of the same absolutely by will. The rule may now be considered settled, wherever the chancery jurisdiction exists, that a married woman is to be regarded as a feme sole in respect of her separate property, and that she may dispose of it as she pleases, unless her power of disposition is restricted or limited by the deed or will creating her interest. Chancellor-Kent, in Jaques vs. Methodist Church, 3 Johns. Ch., 77, admits this to be the rule, as established by the weight of authority; but he held that, in view of the general incapacity of a married woman, she can only dispose of the property constituting her separate estate in the mode prescribed in the deed or will under which she becomes entitled to the estate. The decision of the court of errors did not sustain this view j but, on the contrary, recognized her full and untrammeled power of disposition unless the restriction-upon that power was clearly and positively expressed in the deed or will creating her estate; and it is now the settled law of England and New York that, where property is conveyed to the separate use of a married woman, she has an unlimited control over it, and may dispose of it as if she were a feme sole, unless restrained by some special provision in the deed of settlement itself. The same doctrine was finally adopted by the court of appeals in Maryland in Cooke vs. Husband, 11 Md., 492. The court there say that before the American revolution the English cases established the doctrine that in equity a married woman is to be treated as a feme sole in respect of her separate property, and that she may dispose of it, unless restrained by the instrument creating the estate. The court also admit that since then there has been in that State some diversity among the cases, beginning with Hulme vs. Tenant, 1 Bro., 16, and, after reviewing the decision, concludes as follows: “We are of opinion that a feme covert may act in reference to her separate estate as a feme sole where the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.”

The views expressed by Chief Justice Gibson, in Thomas- vs. Folwell, 2 "Wharton, 11, concur with those of Chancellor Kent, but the great authority of these names has not been able to overthrow the protection which a court of chancery extends to a wife in the entire and absolute control and disposition of her separate estáte. The chancellor has been ex-, pressly overruled, as we have seen, and the contrary doctrine established, in the State of New York, while Chief-Justice Gibson, as far as I have been able to examine, has been followed nowhere beyond the State of Pennsylvania. The rule for which we contend is supported by -the great weight of authority. The oldest chancellors of England have taken this view. Modern legislation is tending to the enlargement of the rights of married women. The chancery jurisdiction was the first to support her in the control of her separate estate, and when this right is so generally settled, it would seem strange for the equity tribunals now to re-assert restriction which they were the first to remove, and to revert again to the exploded presumptions against the rights of a woman simply because she is a wife.

Upon considering the trust-deed in this case, we find that the grantors conveyed the property in question to the trustee, his heirs and assigns, forever, to the use of Mrs. Thompson. There is no restriction upon the mode in which she shall alienate the same, only that the trustee shall join in the deed, which, of course, would be proper without any such provision, as the legal title was in the trustee. The limit, ation can have no reference to a devise, and her testamentary capacity was complete to all intents and purposes. For these reasons we are of opiniou that the will of Mrs. Thompson was valid, and inasmuch as it relates to her separate property, her husband took a good title, and was competent to convey the portion of the land to the complainant.

But if we are mistaken as to the power of Mrs. Thompson to devise this property by virtue of the terms of the trust-deed made in 18G7, we think that she was clearly authorized to dispose of the same by will under the act of Congress regulating the rights of property of married women, passed April 10, 1869, and by virtue of which any married woman “ who has the right to any property, real or personal, belonging to her at the time of the marriage, or acquired during marriage in any way other than from her husband, shall be as absolute as if she were feme sole, and that she may convey, devise, and bequeath the same, or any interest therein, in the same manner and with the like effect as if she were unmarried.”

• It has been suggested that the power given in this act to devise is confined to property acquired after, and not before, the passage of the act. This construction is not to be inferred from the terms in which the law is expressed. At common law she could not make a will of real property, owing to the principle that husband and wife constituted but one, and that the legal existence of the wife was merged in the former. It was a mere personal disability, which the act removed, and conferred the same capacity at law that she already enjoyed in equity. There is no limitation of the kind expressed in the act; and as it is highly remedial in its nature, it ought to receive such a construction as will give effect to the liberal design of the legislature. A recent author, in speaking of a similar statute in the State of New York, observes: “ It has been determined and held by the courts of New York that this power conferred upon married women to dispose of their separate property by will is a general one, and not limited to property acquired subsequently to the passage of the act. They may dispose of their entire property by a will properly executed, whether such property was acquired before or during coverture. The statute removed a disability, and, therefore, the power to devise is not limited to subsequently-acquired property. Van Wert vs. Benedict, 1 Brad., 114. This decision, though pronounced in New York, is good authority upon this subject in Pennsylvania.” Tyler on Infancy and Coverture, 720. The statute is not to be construed to affect any interest which the husband has acquired in the real estate of his wife. No question of that kind arises in this case, and the statute could not be expressed in more general terms; and we think the validity of this will ought to be upheld, although it embraces property acquired at a period before the law went into operation.

Judgment below reversed, and decree granting the prayer of the bill may be passed in this court.

Mr. Justice Wylie dissenting.  