
    Hamilton vs. Bishop & Fly.
    Where, from the language used in a deed or other instrument, it appears to have been the intention of the donor, to vest the property for the seperate use of a married woman, the court will carry that intention into effect,
    In order to vest property to the separate use of the wife, it is not indispensable that technical language should be used. It is enough, if there are expressions denoting, or from which may be inferred, an intention to exclude the husband, or which are incompatible with the idea that the donor intended the husband should exercise dominion over it.
    Where a slave was given to A. (a married woman) and the heirs of her body, “to the use of the said A. and children, and to remain in the possession of said A. for the use and support of said children forever:” Held, that this was a gift for the sole and separate use of the wife and children.
    When a deed, conveys property to a married woman, for her sole and separata use, without the intervention of a trustee, the husband wili be considered as such, although he was no party to the instrument.
    A deed conveying property to the separate use of the wife, is valid,'without registration, as to the creditors of, or purchasers from the husband.
    This bill was filed by the complainant against the defendants, to recover a negro woman, who had been mortgaged by her deceased husband, to the'defendants, and which she claimed as having been given to her separate use by her father) who, when the negro was delivered, executed the following deed: “Know all men by these presents, that in consideration of the natural love and affection I bear to my daughter Elizabeth Rhodes, since given m marriage to, and now the wife of Andrew Hamilton, I give to the said Elizabeth, and to the heirs of her body at my death, one negro woman named Emilia, supposed to be about twenty-four years of age; one bed, bedstead, and furniture; two cows and calves, and two head of sheep, and the increase of the same, to the use and benefit of said Elizabeth and children; and to remain in the possession of said Elizabeth, for the use and support of said children forever. As given under my hand and seal, this sixteenth day of August, 1827.
    James Rhodes {Seal.)”
    
    This deed was never registered. The slave, and other property mentioned in the deed, was delivered to Hamilton and wife, in December, 1827. In April, 1828, Rhodes, the donor, died; and sometime in 1831, Hamilton, the husband, died. The defendants claim the property as creditors of Hamilton, who, to secure their demands, mortgaged the slave and her child to Bishop. Under which mortgage they were sold, and purchased by defendant Fly. The chancellor was of opinion the property was vested absolutely in the husband, and dismissed the bill. •
    
      George S. Yerger and Clayton, for complainants.
    It is conceived the chancellor erred. If the deed had simply been a gift to her, and the heirs of her body, then the chancellor’s opinion would have been correct. An estate tail would, by these words, have been created in real estate; which words would vest the absolute interest in her, and consequently in her husband. But this case vests no legal right in the wife. The subsequent words, that she is to hold the same, “to the use and'benefit of the said Elizabeth and her children;” and to remain in the possession of said Elizabeth, “for the use and support of said children forever,” control the previous limitation to her and the heirs of her body, and gives a separate estate to the wife, for the use of herself and children. The decided cases clearly establish this position. If the slaves had been given to a trustee, for the separate use of the wife and her children, this would have created a trust for the wife and children jointly. 3 Pickering’s Rep. 269; 4 Page’s Rep. 293.
    The simple question in this case, then is, whether the donor intended this to be a separate estate for the use of the wife and children? If he did, a court of equity will carry that intention into effect. 2 Kent’s Com. 162. If there is no trustee, tire husband is a trustee for his wife; and her interest cannot he sold for his debts. Clancy, on the rights of women, 257, 258; Rolf vs. Budden, Bunber-ry’s Rep. 187; 2 Kent 162, 166; 2 P. Wm. 316, Bennet vs. Davis; 1 John. Ch. Rep. 65; 4 Dessau. Rep. 255, 350, 458; 3 Do. 194. This deed, on its face, shows a clear intention to vest the property for the separate use of the wife and children. After giving it to her and the heirs of her body, he says, “the same to the use and benefit of said Elizabeth and children, and to remain in possession of said Elizabeth, for the use and support of the said children forever.” "Stronger language can hardly be conceived. It is to be for the use and benefit of her and the children, which excludes all idea that the husband is to have any control. But as if this were not sufficiently strong, the donor says, “to remain- in her possession for the use and support of the children forever.”
    Property of any description may be limited to the use of a married woman, but whether that use shall be separate, depends altogether on the intention of the donor. When that intention is once ascertained, equity will give effect to it without regard to the legal maxim, “that the husband is the head of the wife, and that therefore all she has belongs to him.” Clancy, on Rights, 251.
    
      The separate estate may be created before or during ■ ru the marriage. 1b. 262.
    To give the wife a separate estate, technical language is not necessary. All that is required is, that the intention should distinctly appear. Ib. 262.
    Any expression denoting an exclusion of the husband, or direction, as to the enjoyment, incompatible with any dominion of his, is sufficient. Ib. 262.
    The words following, have been holden sufficient: “Sole and separate use of the wife,” or any words equivalent to them. Ib. 263.
    “To be at her disposal.” Ib. 263; 7 Viner Ab. 96.
    That “she shall enjoy and receive rents and profits.” Clancy 263.
    So an estate to her “for her livelihood.” Darley vs-Darley, 3 Atkins 399.
    So, property to her, and “that her receipt shall be a sufficient discharge. Clancy 264; 3 Brown’s Ch. Rep. 383.
    So a devise of bonds to her, “to be delivered to her 6n her demand.” Clancy 263; 2 Cox. Ch. Rep. 414.
    So, property to her “for her own use.” Clancy 267.
    The cases of Jones vs. Lockart, Kirk vs. Paulin, and Wells vs. Sayers, cited in Clancy, pages 267 and 268, are in conflict with the last case; but these cases are opposed in principle to prior adjudications, and violate the manifest intent.”
    To be “at her disposal;” to do with as she shall think fit, and for her own use and at her disposal, gives separate property. Clancy 268, 269.
    So, a direction fcfpay “into the proper hands of the wife.” Hartly vs. Hurt, 6 Vesey 540; Clancy 270.
    So, when the deed is not explicit, if the intention can be inferred, it is sufficient. Johnston vs. Thompson, 4 Dessasure 458; 6 Munford 581; 1 Supplement to Vesey, Jr. 410; 2 Roper, Law of Husband and Wife, 295.
    But it is said this deed is void as to the creditors of the husband. The act of assembly requires it to be registered, only as to creditors or purchasers from the grantor. Pierce vs. Turner, 5 Cranch’s Rep.; Law vs. Jeffries, 5 Ran. Rep. 211; Morgan vs. Elam 4 Yerger’s Rep. 449.
    
      Wm. Thompson, for defendant.
    1. Can a wife have a separate property in a personal thing, without a trustee?
    The authorities on this point are contradictory. In Harvey vs. Harvey, 1 P. Wm. 125, the lord chancellor inclined to the opinion, that she could not. In the case of Burton vs. Pierpont, 2 P. Wm. 79, it was expressly determined she could not. In the case of Hulme vs. Ten-nant, 1 B. C. C. 89, Lord Thurlow said a feme covert could have no separate property without trustees. The question in the above cases was directly raised. In other cases it has been decided, that she could hold personal property without the intervention of trustees.
    It is for the court to adopt the decisions on the one hand or the other, as they may deem proper.
    2. What is the construction to be put on the deed of gift? The slave, in the first place, is given to Mrs. Hamilton and the heirs of her body, with the gift of some other personal property liable to be lost by the use, of a perishable land. So far the gift to her is absolute. The additional words, “for her use and the children, to be held by her forever for the support of the children,” cannot vary the legal effect of the deed. Is not the other prop* erty mentioned in the deed on the same footing with the slave? Could she not sell any part of the stock or furniture? It would seem to me that she certainly could. Suppose it became necessary for the support of the family to sell the sheep; could she not do it, or must she hold them forever? The latter is not the meaning of the instrument. Then she could, also, if necessary, sell or mortgage the slave. * For this purpose the whole property is given to her. It is not like the case of a gift to an. in* ^ant’ aS *n ^-entuc^7 authority, referred to by Mr. Yergcr, where the father, as his natural guardian, holds the property in kind for his child. There the property was giyen t0 tíie child in so many words. Here the property is given to Mrs. Hamilton and the heirs of her body, to hold forever, without a provision to be divided at any period thereafter among the children, or any designation of any children in particular, whether those then born, or thereafter to be bom. It is the same as if given to her for the support of her family. A father leaving to his daughter any disposition she pleased to make of any, or all of the property, in her own discretion, the presumption with him was, that the mother would do right in relation to her children. Hence the gift was to her absolutely, as the chancellor decided, and no legal or equitable right attached in the children, or her family. Their claims on her were those of nature, which are imperfect, and in a case like this, could not be enforced in a court of justice. The property then, was Mrs. Hamilton’s. Was it to her sole and separate use? Was the marital right of the husband excluded?
    The husband is the head of the family, and he is legally bound for the necessary support of his wife.
    In this case, the husband was living and known to the donor, and even present when the deed of gift was made. If the donor meant to exclude his marital rights, he could have said so in the deed. He could have done it either expressly, or by using the words, which in law would do it impliedly. Whether this is done, must turn upon the construction of the instrument. Clancy (page 262) says, the trust should be “very distinctly expressed,” before the court would decree it against the rights of the husband. Same page, he says, “Such a claim on the part of a married woman, being against common right, the instrument under which it is made must clearly speak the donor’s intention to bar the husband, else it cannot be allowed.” He says further, at page 262-, “It will appear from the cases, that the strongest evidence of intended gen- , , . ... ... . _ . ° erosity and bounty to tiie wile, will not be sufficient to give her a separate estate, unless, in addition, language be used by the donor, clearly expressing the exclusion of the husband,, or else directions be given with respect to the enjoyment of the gift, wholly incompatible with any dominion of the husband.” Here was a family, husband, wife, and children, laboring for a common object, the support of the family. The husband was bound by law to support his wife and children, and this property is given to aid in the common object. Perhaps the very debts here attempted to be collected, were contracted for the necessaries of the family. Is there, then, any directions given with respect to the enjoyment of the property, incompatible with the husband’s dominion? We say his dominion and right to sell is, and was necessary for the enjoyment of the property according to the will of the donor, the support of the family. Clancy, at page 268, in reciting the decisions showing what words will exclude the dominion of the husband, and after showing many instances of expressions to “her sole and separate use,” that have had the effect to exclude the husband, and of the words which have been synonymous to those, comes to the very words, at least in substance, that are used in this. deed, and says these are not sufficient to exclude the husband. “In .Kirk vs. Pawlin, a bequest to a feme covert, for her use and benefit., was held not to be to her separate use.” 7 Yin. 95; Clancy 268. And see other similar' expressions, decided by the court not to give a separate property, free from the control of the husband. “To destroy the marital right of the husband in her property, a decided intention must be shown, that he shall have no interest whatever in it. See 1 Bac. A. 482 (note a); 3 Vesey 166; 5 Do. 507.
    3. Should the deed have been registered tinder the act of 1784, chapter 10? I cannot resist the belief that it should. The son-in-law carrying home and retaining for three years and more a slave which he received from his fathcr-m-law, is m law a gift. The law makes it prima . . .. ’ t , r x1 jacte a gilt, lie keeps possession ior more than three years and sells. Now it is contended, that the husband was only a trustee, and there was no gift. How do they maintain this assumption, against the conclusion of law, arising from the son-in-law taking home the property, and his possession? By a secret, unregistered deed.
    
   Green, J.,

delivered the opinion of the court.

It is contended by the defendants, and so the chancellor decided, that this deed vested the property conveyed by it absolutely in Andrew Hamilton, the husband of Elizabeth; and the first question for our consideration is, what is the true construction of this deed.

Whether this is an absolute gift, by which the right to the property is vested in the husband, or a gift to her separate use, whereby the marital right of the husband was excluded, must depend upon the intention of the donor, to be collected from the language he has employed. For if the father intended the property to be held as a separate estate, the court will carry that intention into effect. 2 Kent’s Com. 165; Clancy 251, 288; Elam vs. Morgan, 5 Yerger’s Rep. In order to vest the property to the separate use of the wife, it is not indispensable that technical language should be employed; it is enough if there are any expressions denoting an intention to exclude the husband, or which are incompatible with the idea, that the donor intended that the husband should exercise dominion over it. Clancy 262. A variety of expressions are enumerated by Mr. Clancy (pages 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.” The words used in this deed are, “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. ” These words control and limit the meaning of the expressions before used: “I give to the said Elizabeth and the heirs of her body,” so as to point out the particular purpose for which the property was given, and in our view are equivalent to the words, “sole and separate use.” How can the'property he for “the use and benefit of the said Elizabeth and her children,” and to remain forever in her possession for that use, unless the marital right of her husband be excluded? From hence, therefore, we must infer, that the father intended such exclusion. In the case of Johnson vs. Thomson (4 Dess. 458), the court said, that although the deed was not explicit, yet as the intention might be inferred, that it was to be held for the separate use of the wife, it was sufficient. Such intention we think plainly inferrable from the language in the deed before us. It must be regarded, therefore, as a conveyance for the separate use of Elizabeth Hamilton and her children; Andrew Hamilton, the husband, taking no interest therein, and having no power to mortgage the slave for his debt.

2. The next question is, can a wife have a separate property in an estate which is conveyed to her directly, without the intervention of a trustee?

Chancellor Kent says (2 Kent’s Com. 162), “If property be settled to a married woman’s separate use, and no trustee be appointed, the husband will be considered as such, notwithstanding he was not a party to the instrument under which the wife claims.” Clancy, on the rights of married women (pages 15, 30), holds the same doctrine, and it may be considered now as settled beyond question, that it is not essential to the validity of a conveyance of property for the separate use of a wife, that a trustee be named in the deed, but that the husband will be constituted a trustee.

3. It is insisted, that this deed should have been registered, and this not having been done, the deed is void. This question is settled upon authority that we may not now question. The supreme court of the United States, in the case of Pierce vs. Turner (5 Cranch), decided, upon the construction of the Virginia statute, which is similar to ours, that the act applies only to the creditors of the grantor. That case was followed by the court of appeals of Virginia, in the case of Land vs. Jeffries (5 Ran. Rep. 311); and the authority of these cases was held to be decisive of this question, by this court, in Morgan vs. Elam (5 Yer. Rep. 449. Therefore, the decree will be reversed, and a decree for the complainant.

Decree reversed.  