Williams v. Donaldson

I have read, with much attention, the marriage settlement and deed of trust exhibited in this case, and have examined and carefully considered the authorities referred to by the solicitor for the complainants, and some others bearing upon the subject, and am of opinion that such a decree as this bill prays for cannot be passed.

The American doctrine upon this interesting question is at variance with that which seems now to prevail in England, and I think the former is vindicated by Chancellor Kent and Chief Justice Gibson, with a force and clearness of reasoning which cannot be shaken. Vide The Methodist Church vs. Jaques, 3 Johns. Ch. Rep. 78, and Thomas vs. Folwell, 2 Wharton, 11.

The American doctrine, as established by these cases, and others, is, that the power of a feme covert over her separate estate must be exercised according to the mode prescribed by the instrument under which she becomes entitled to the property, and that to confine her to that particular mode the instrument need not specially restrict her to it. That she has no power *418over her separate estate but such as has been specially given to her, and in exercising the power of disposition she is restricted to the particular mode specified in the instrument under which she takes when the instrument undertakes to make such specification. By referring to the cases collected in the Law Library, vol. 65, pages 370, et seq., this will be found to be the settled doctrine in this country upon the subject, and I am of opinion that it does not conflict, but is in harmony with the cases which have been decided by the Court of Appeals in this state.

The deed, in this particular case, appears to have been drawn up with much care, and prescribes in very precise terms the mode in which Mrs. Williams shall dispose of her separate estate, and I should much apprehend, that by passing the decree prayed for by this bill, I should defeat the object to accomplish which the deed was executed.