Wetherill v. Mecke

The following opinion was delivered by

— No doubt the devisees named in the will of Dorothy Large took separate estates to their own use. But Sarah Large Mifflin (one of them) being a feme sole, this use was executed by the statute, and her conveyance of June, 1833, was therefore probably effective to convey her interest in the subject of that deed; more particularly, as the object seems to have been to effect a partition of the devised estate. Lancaster v. Dolan, 1 R. 246-7; 1 Saund. on Uses, 197. So, too, I think the agreement to enter into an amicable action of partition, between the minor children of Elizabeth Large, by their guardian, and John B. Large and Rebecca his wife, and the subsequent proceedings, resulting in a final judgment, maybe supported, on the ground, that the minors and feme covert, Rebecca Large, being compellable to make partition of the trust property, their voluntary agreement to do so, or any step towards it, is valid, in the absence of any allegation of unfairness. Litt. § 257; Co. Litt. 171 a; Allnatt on Part. 21. And the feme covert, infants and cestuis que trust were, properly, made parties to the action. Attorney Gen. v. Hamilton, 1 Madd. 122; Willing v. Brown, 7 S. & R. 468; Gratz v. Gratz, 4 R. 411; Act of 1807; Miller on Part. 34; Allnatt 27, 104. But this partition left the land still subject to the trust, and the directions of the will by which it was created. Now, since Lancaster v. Dolan, 1 R. 248, it is the settled doctrine of this state that a wife, in respect of her separate estate, is deemed a feme sole only to the extent of the power given by the conveyance creating the estate. Instead of having an absolute right of disposition, *141unless expressly restrained, (which seems to be the modern English doctrine) the converse of the proposition is true, viz. that a married woman has no power but what is expressly given. She cannot exercise an authority over the estate, so as to divert it from the defined object of the trust further than she is expressly empowered so to do, by the terms of the deed; and then only in the manner and form and for the objects prescribed by it. Pullen v. Rianhard, 1 Wh. 514; Thomas v. Folwell, 2 Wh. 16. So far was this doctrine carried in Dorrance v. Scott, 3 Wh. 309, that a power to a feme covert to sell and absolutely convey the estate, and to appropriate the proceeds to her own use, or to devise to whom she saw proper, and in default of a devise over to her right heirs, was not well executed by a confession of judgment to secure repayment of money borrowed. Lyne’s Executor v. Crouse, 1 Barr 111, is another strong case: there, & feme, in contemplation of marriage, conveyed her estate in trust for the separate use of herself, her heirs and assigns for ever, arid to be subject to her order alone: it was ruled, she had no power of disposition, having reserved none.

By the will of Dorothy Large, the cestuis que■ trust were empowered to revoke the trust declared, by writing executed by all of them, with the assent of the trustee. This has not been done. Failing this, they were empowered, with the consent of the trustee, to sell and dispose of the trust estate, “for the purpose of investing the proceeds in any other kind of estate or property more beneficial or productive to them;” and, perhaps, after partition made, this might have been done by one of them, in respect of the purpart assigned to her, and which, of course, she would continue to hold, in severalty, subject to the trust. But it is not apparent that the conveyance from Rebecca Large and her husband, to their son Robert H. Large, was for any such purpose. Nay, the consideration expressed, of one dollar, would seem to prove no purpose of again *142purchasing with the purchase money was in view, or led to the conveyance to the son. I do not think this is helped by the allegation of “ other valuable considerations,” especially in the absence of any averment in the bill or answer, of such being the object of the sale. The defendant insists, that looking only to the muniments tendered him, the plaintiff cannot make a marketable title, inasmuch as the latter derives his interest in the premises under the deed to Robert H. Large, which was not a valid execution of the power, and therefore passed nothing. It strikes me there is soundness in this objection. At all events, I doubt the title tendered, and this is sufficient, for the present, to defeat the prayer for a specific performance.

The plaintiff’s bill must be dismissed with costs.*