Mason v. Deese

By the Court.

Stephens, J.,

delivering the opinion.

The sole question in this ease is, whether or not it was the intention of this settlement to exclude the husband from his marital rights after the death of his wife ? The words of the exclusion constitute the first trust or condition declared by the settlement, and areas follows: “ The said property nor any part thereof, or the proceeds, profits or hire thereof, is never to be subject to the control, contracts or liabilities of the said Lunsford Lowe, heretofore made or entered into by him, or that shall hereafter be made or entered into by him.” By these terms, from what, or how much is he excluded, and during what time, or how long is he excluded ? It was suggested that these terms fail to effect any exclusion at all, upon the idea that their real intention was not the lawful one of excluding the interest which the husband would acquire by the marriage, but the unlawful one of protecting that interest from his debts, and that the intentiou being illegal must fail. It is true that the form of phraseology indicates that the parties were looking to the security of the property from the husband’s debts, as a leading purpose, but the plain legal effect of the language used, is the complete exclusion of his interest during whatever period the exclusion operates. The property is saved from his control, as well as his contracts, and is guarded against him, as well as against his creditors. He who has no control over a thing, nor any power of subjecting it to his contracts or liabilities, has no property in that thing. Take away these, and I know not anything that is left. The words used effectually negative the husband’s interest, and there are no other words to contradict or qualify them. To conclude that an interest was intended to be lett in him during the period in which this clause is to have effect, is to impute an intention to the parties upon a mere surmise, in opposition to the plain effect of the words which they have used to express their intention. The exclusion is complete so long as it lasts. During what time, or how long does it operate? It is clear that the literal sense of the term excludes him forever, as well after the *313 death of his wife as during her life; for the property, corpus and proceeds, is never to be his. But it is said that this being the conceded literal sense of these words, they must be construed in the light of, and restrained by, the preceding words, which declare the object of the settlement to be the securing of the property to the sole and separate use of the wife. It is said that this purpose being declared in limine, must be regarded as a general intent covering and limiting the scope of the whole instrument, and that this general intent being itself confined in its operation to the lifetime of the wife, confines the operation of all the provisions within the same period. This position is untenable, because it is in plain conflict with one of the clearest and most important provisions in the whole settlement — the provision for the issue of the marriage. This provision, so far from being confined in its operation to the life time of the wife, as the agreement requires that it should be, begins its operation only after her death. This proves that what is claimed as a general intent covering and limiting all the provisions of the settlement, is not what it is claimed to be. It fails to cover one of the leading and most clearly expressed purposes of the settlement; and failing to cover one, may it not fail to cover another.? One clear failure breaks down the reliability of that clause, as a guide in the construction. This, therefore, is no reason, nor does any other reason occur to me, for cutting down and limiting the literal and natural force of the word “ never.” On the contrary, it seems to me that this word must have its full force, operating after the death of the wife as well as during her life, in order to give meaning to all the parts of the settlement. This exclusion which receives great prominence from being placed first, was wholly useless, unless it was intended to have effect after the death of the wife; for the very next clause secures the sole and separate use of the property to her and her family (including him so long as he may continue a member of her family) during her life, and thus, by a single provision, exhausts the alleged general intent. Again, the last thing which the husband did was to covenant that he would exercise no greater power or authority over the property than he was authorized to do by the settlement — not by the marriage as regulated by the settlement, but by the settlement itself. He was to do nothing, unless empowered by the settlement. This indi *314 cates, to my mind, that the parties considered that they had established the basis of total exclusion in the first place, and that all which the husband could take, was to come by being expressed and conferred in subsequent clauses of the settlement, and not come as an unbarred residuum of marital rights. The settlement does confer on him two benefits: the provision for his support so long as he might continue a member of his wife’s family by living with her, and the chance of being her legatee in the event of her dying without issue. The value of that chance depended very much, if not wholly, upon his solvency or insolvency at the time when the wife should come to exercise her appointing power. I have no doubt it was the expectation of both husband and wife, when they made the settlement, that she would exercise that appointing power in his favor, if he should be in a condition to reap the benefit for himself, but that she would not do it if his creditors were to pocket her estate. So much as to my own views of this settlement. Judge Lyon and myself arrived at exactly opposite conclusions, he thinking that the husband was not excluded after the death of the wife, and I thinking that he was, each of us founding his opinion upon the terms of the settlement itself. Judge Lumpkin thought that it was not perfectly clear from the settlement itself, that the husband was intended to be excluded, and that the settlement had better lie submitted to a jury to be construed in the light of the surrounding circumstances, particularly the alleged insolvency of the husband when the settlement was made. His view and mine, though not the same, necessarily led to a reversal of the judgment below, which coincided with the view of Judge Lyon. Judge Lumpkin and myself then had to give direction to the case on the new trial which we had awarded. As he could not go so far as I had gone, I fell back upon his position as the only possible solution of the difficulty, and we united upon that as the instruction for the future government of the caso. I will add a few words in explanation of the important light which may be derived from the insolvency of the husband at the time of the marriage, if that fact really existed as alleged in the bill. Its significance does not consist in its being a motive to the settlement, though in point of fact, it very probably was a leading cause of the settlement, but in its being a probable motive to that particular part of the settlement which clothes *315 the wife with an appointing power in ease of her death without issue. Supposing this provision to have been inserted with a view of exercising it for his benefit, in case he should afterwards get in a situation to profit by his wife’s bounty, (a very reasonable and probable supposition,) then the parties must have considered that without the exei-dse of that power, the effect of the settlement was to exclude him after h$r death. I am obliged to think that the present ease is a much stronger one for the exclusion of the husband than another in which this Court excluded him. See Holmes vs. Liptrot, 8 Ga. Rep., 279 .

Judgment reversed.