Summary
Appeal from the Equity side of the Circuit Court1 for Frederick County.
By an ante-nuptial contract, or articles of agreement, dated March 4th, 1850, between Isaac Michael and Catharine Baker, made in contemplation and consideration of marriage, the said parties, under their hands and seals, entered into covenants and stipulations in substance as follows:—The said Catharine being possessed in her own right of money, choses in action, book accounts and other personal property, to the amount of $4250, doth hereby assign and convey the same to the said Isaac, and he, in consideration of the said sum of $4250, doth covenant and agree with the said Catharine, her executors, administrators or assignp, to pay to her, the said Catharine, her executors, administrators or assigns, during her life, notwithstanding her covejrture, the annual interest accruing oh said sum for her sple, separate and exclusive use and benefit, free from his marital rights., and in case the said Isaac should die before the said Catharine, he, the said Isaac, doth bind his heirs, executors or administratprs, to pay to the said Catharine, her executors, administrators pp assigns, the said sum of $4250, with any interest which may be due thereon. And it is further agreed by the said parti.es, that the said Catharine shall be at full liberty to devise and bequeath the said sum of $4250, and any interest which may be due thereon, as if she were a feme sp.le, and thatj hp, the said Isaac, will consent to any will or will?, or tp any codicil or codicils which she, the said Catharine, may make during coverture with the said Isaac, and thqt he ynll assent to the same in writing, and in default of any such appointment by will or codicil, he, the said Isaac, binds himself, his heirs, executors or administrators, in the event of his surviving the said Catharine to pay the said sum to any child or children she may leave, 'equally among all if more than one. And it is further agreed, that the said Catharine shall, during her coverture, receive the rents- and profits of the house and lot in Middletown, now owned and occupied by her, for her sole, separate and exclusive use, and shall, during her coverture, have power to sell and convey the same and invest the proceeds in such manner as she may direct for her sole, separate and exclusive use and benefit; and the said Isaac doth covenant and agree to unite with her in in any deed or conveyance which may be necessary to convey title to the same; and he doth further covenant and agree, that she, the said Catharine, may devise the said real estate or any. other real estate which she may purchase during coverture, and may bequeath the proceeds of any sale of real estate to any person whom she may appoint, and in default of appointment, then that such real or personal estate shall descend to and be distributed among any children she may leave, if more than one, and if only one, that , such child shall receive the whole personal and real estate which she may leave. And it is further expressly agreed, that this agreement and no matter and thing therein contained, .shall debar the said Catharine from any right which she may acquire by virtue of her intermarriage with the said Isaac, either ip his real or personal estate.
The marriage took place, and on the 26th of April 1856, the wife executed a will, in which, after directing payment of her debts and bequeathing legacies of $100 each, to five of her relatives, she addedriAii the rest and residue of my estate, real, personal and mixed, 1 give, devise, and bequeath unto my daughter, Carpline M. Baker, her heirs and assigns forever,” and appointed the said Caroline her sole executrix. No assent in writing, or otherwise, of her husband to this will, appears. The wife died on the 28th of February 1858, and letters testamentary under her will on her estate were granted on the 9th of August 1858, to the said Caroline M. Baker, who subsequently intermarried with Albert Mory, who thereby became jointly interested in the execution of said trust of executorship, and the bill in this case was filed by them in that capacity on the 14th of October 1858, against the appellee, the surviving husband of the said Catharine.
The bill after stating the contract, will and facts as above, charges, that the will was made in pursuance of the power of appointment, vested in the said Catharine by the said contract; that the defendant paid the interest on the $4250, up to February 4th, 1854, to the said Catharine in her lifetime, but has never paid any part thereof since that time, and the whole principal sum with interest from that date is still due and in the hands of the defendant charged with the trusts, and subject to the powers set out in said contract, by which the principal sum passed into his hands in trust to pay the interest thereon to the said Catharine during her life, for her sole and separate use, and if she survived him, in trust that his executors and administrators should pay over the same with any interest due thereon to the said Catharine, her executors, administrators or assigns, and she had full power to devise and bequeath the same as if she were a feme sole-, and if she died without exercising her disposing power, the said sum and interest was limited over to her child or children. The bill further charges, that under said contract said principal sum and the interest due thereon, vested in the said Catharine in her own absolute, separate right, and was subject to her disposing power reserved to her in that contract, and in the exercise of that power she executed the will above set forth, and by virtue thereof, said sum and the interest due thereon, passed to the complainant, Caroline, as executrix of said will; that the defendant has refused, and still' refuses, to pay the same or any part thereof, though repeatedly called on and required so to do, and that the complainants^have no remedy at law. The prayer of the bill is, that the defendant may be compelled to pay to the complainants the said sum of $4250, and the intercst due thereon, or so much thereof as the complainant, Caroline, may be entitled to, in right of the said Catharine, as her executrix and representative under and by virtue of her said will, and for general relief. To this bill the defendant demurred :—■
1st. Because it does not state a case entitling'’the complainants to the relief sought as to payment of the $4250, with interest to the complainant as executrix of the said Catharine, for that said will, a copy of which is exhibited with and made part of the bill, is not a good and valid execution of the power contained in said marriage contract.
2nd. For that the complainant, if she has any remedy as to the recovery of the $4250, has full and complete remedy at law, and this court, as a court of equity, has’no jurisdiction over the subject matter, as the object of the bill is to recover money only on a covenant to pay.
3rd. For that the only object of the bill is to recover the $4250, with interest, by the complainant, as executrix of the said Catharine, for which, if she is entitled to recover at a 11, she has full and complete remedy at law, and this court has no jurisdiction over the subject matter as a court of equity.
The court, (Nelson, J.,) under agreement, passed a pro forma decree, sustaining the demurrer and dismissing, the bill, from which the complainants appealed.
1st. Has a court of equity jurisdiction in the case made by the bill? The appellants insist the- jurisdiction is clear. The case arises upon an ante-nuptial contract, and springs out of its construction. To enforce such a contract and whatever appertains to the separate property of a married woman; has always been a peculiar subject of equity jurisdiction. 2 Story's Eg., sacs. 1385, 1386-, 14 Md. Rep., 267, Bridges Woods, vs. MbKenna. The contract which the bill seeks to enforce, presents a clear case of trust in the appellee, over which equity has undoubted jurisdiction. There was no necessity of a trustee, in such a case, to perfect the trust, for the husband will be held to be mere trustee for the wife. 2 Story's Eq., sec. 1380. 3 Johns. Ch. Rep., 540, Bradish vs. Gibbs. This contract, though- made before marriage, is yet one in consideration of the marriage, ft is not éxtinguished by the marriage, and it is the peculiar duty of courts of equity in such cases to carry out the intention of the parties and enforce the provisions of the contract. 2 Stóry's Eq'.,- sec. 1370. It is true, there are some contracts prior to marriage, but which are not to be performed until after the death' of the husband, in which a. court of law will assert its jurisdiction. 5 Term Rep., 381, Milbolifn vs. Ewart. But though in such cases, courts of law may h’ave concurrent? jurisdiction with courts of equity, it does not oust the jurisdiction of the latter, which still remains unaffected', and is the most efficient in the enforcement of such contraéis; this is clear* upon authority, and is well sustained. 2 Stofy's Eq., sec. 1371 and note. Büt in this case there is a clear trúst, as tothe interest or increment of the fund, to be performed during the marriage, and over which a court of law could never assert its jurisdiction, because in such cases the courts of law cannot sustain suits between a feme covert and her husband. It is clear, in every view of the case, that the jurisdiction' in such cases'does vest in a court of equity, and it is its peculiar jurisdiction to enforce all such contracts.
2nd. The next question is, whether the will of the wife is or not a good and valid execution of the power in the marriage contract, as regards the $4250, and the interest due thereon? It is admitted this will was not executed in conformity with the requirements of the Act of 1842, ch. 293, sec. 6, and that it is wholly inoperative unless as an execution of the power conferred by the marriage contract. But this contract clearly authorizes the wife to appoint by will, as though she were a feme sole, this fund and any interest due thereon, and the husband covenants to consent in writing to such appointment. The wife did make her will in due form of law sufficient to convey real and personal estate, and this will was duly admitted to probate. The rights and powers of a feme covert over property settled for her sole and separate use, are now well settled in Maryland:-—where property is thus settled and a mode is pointed out for an appointment,- in the instrument creating the estate, that mode must be pursued. 5 Md. Rep., 220, Miller f Mayhew, vs. Williamson. 13ut where the instrument is silent as to her disposing power, she is to be regarded as a feme sole, as to her separate estate, and her disposing power springs from, and is an incident of, her estate, and unrestricted as to its character. 11 Md. Rep., 492, Cooke vs. Husbands. It is insisted that no well grounded exception can be taken in this case as to the quo modo adopted, and by which the power is sought to be executed. The povirer conferred to appoint is by will—the donee of the power made a will in due form of law, and if she intended thereby to execute the power, it is clearly sufficient for that purpose. The power here cannot be construed as a license to make a will, which would require the husband’s assent to make it valid, because it is a power given her by contract, in consideration of marriage, in which a power is reserved over her own property as a feme sole. In such a case, if the assent of the husband can be considered as intended by the parties to be a formal part of the instrument by which they intended the power should be executed, and the instrument is defective in this particular, a court of equity will aid the defect, and not allow the power to fail if the intent to execute the power is sufficiently indicated. 1 Story’s Eq., sec. 172. The bad faith of the husband in such a case will not be countenanced by the court, particularly where the appointees are meritorious. If the power of appointment, upon a fair construction of the contract, is confined to the $4250, and is silent as to the interest due at the time of the wife’s death, then the power of disposition is unrestrained as an incident of her right of pioperty in her capacity as a feme sole, for it is clear that that part of the fund, under the contract, was hers in absolute right, and under such cirumstances the will, if intended as an execution of her power, is good and valid as such. 11 Md. Rep., 492, Cooke vs. Husbands.
Did the wife then intend to execute the power by her will ? Like all other questions on wills, this depends upon intention: if this satisfactorily appears it is all that is required. This intention need not appear in express terms on the face of the instrument, nor need the power be referred to3 the intent to execute the power, however manifested, whether directly or indirectly, or by just implication, is sufficient to make it valid. 4 Kent, 335. 3 Johns. Ch. Rep., 551, Bradish vs. Gibbs. 1 Story's C. C. Rep., 426, Blagge vs. Miles. In every particular case a question of construction must arise to ascertain the inten-' tion. In many cases, (adopting the rule distinguishing power from property,) such general language as is used in this will, has been held not to be, of itself, sufficiently specific to execute a power, though sufficient to bequeath an interest. Such is the principle settled in most of the cases relied on by the appellee. But if the distinction, as a general rule, be admitted to be sound, still, if in any particular case a sufficient indication can be found of an intention to execute the power, that intention will prevail. S Ves., 591, Roach vs. Haynes. 4 Russ, 76, Walker vs. Mackie. Ibid., 292, Grant vs. Lynam. 2 Ves., 589, Standen vs. Standen. 1 Taunt., 289, Morgan vs. Sumían. 15 Law Lib., 394. The testatrix professes to devise all the real and personal estate she owned; she had no other real estate but that embraced in the power:—it is specific as to the real,, and clearly indicates her intention to execute the power, and will extend to the personal estate. In all cases a will operates as an appointment under a power, provided it has no op*eration without the power. 4 Kent, 335. 3 Johns. Ch. Rep.,. 551, Bradish vs. Gibbs. Even Sir Edward Clere's case, where the strict rule was sustained, admits this to be a sound principle of construction. Now this is a case where a married woman having a testamentary power of appointment makes a. will, and it must be intended to be an exercise of the power, though it contains no reference to it, because the will of a married woman can operate in no other way than as an execution of the power. Churchill vs. Dibben, in note to 9 Simons, 447. See, also, 1 Story’s C. C. Rep., 426;3 Johns. Ch. Rep., 551; 1 Hoff. Ch. Rep., 2, Heyer vs. Burger; 3 Ves., 299, Hales vs. Margerum; 15 Laxo LÁb., 232; 6 Brown's Pa. Cases, 158, Roscommen vs. Foivke. In the cases of Lovell vs. Knight, 3 Sim., 275, and Lempriere vs. Yalpy, 5 Sim., 108, fem-mes covert having power, in general words, gave all to their husbands, and were held not to have exercised their disposing power, but after a careful examination of these cases, there will be found nothing in them which can weaken the reasons upon which Churchill vs. Dibben is based; they were cases in which the wives possessed mere powers of appointment, and no absolute interest in the subjects of-appointment, and they employed general words in their wills without reference to the powers or the subjects of the powers. Such is not the case here, and it is submitted there is nothing in any of the cases that ought to create a doubt as to the soundness of the doctrine announced in Churchill vs. Dibben. Here a clear power is conferred upon a feme covert over her own estate. If this had been a will of a person acting sui juris, there could be no doubt of the intent to devise all that the testatrix had, and would operate as a devise of the interest, and not as a power over the interest of another. If (his be so, how can the just conclusion be avoided, that a person in the position of a feme covert, who can devise or bequeath her interests in no other mode than by the exercise of her power, did mean and intend by the employment of the same language, to execute her power, to devise and bequeath her interest secured to her by her marriage contract? This view of the case is fully sustained by the cases of Standen vs. Standen, Hales vs. Margerum, and, also, in the. just criticism of all the cases by Sir E. Sugden, in 15 Law Lib.,223. If this position be correct, then what interest had the wife in this case under the marriage contract? The whole estate was hers before marriage:—by her marriage contract she reserves aright to the interest during coverture, and, on her husband’s death, to the whole fund, with a clear power of disposing of the whole estate, real and personal, by will. The limitations in this contract are precisely the same as in Hales vs. Margerum and Standen vs. anden; apd from those cases it must be considered that the whole fund .belonged to the wife in absolute right, or at least sufficiently so, to be devise,d and bequeathed by the words “all my estate, real, personal and mixed.” But whatever difference of opinion may exist as to the principal sum, surely there cap be non.e as to the interest due at the time of the wife’s death. This is clearly her sole and separate estate, which she has a right to will as a feme sole, and is embraced by the words “my estate.” In any view of the case, the demurrer cannot be sustained. Again, .the complainant, Caroline, and executrix of the wife, is a child of her first marriage, and the only child the wife left at her death; and if the power is not well executed, will she not tajre, under the marriage contract, the whole fund ? All necessary parties are before the court, and her interest in this particular, will be protected under the general prayer of the bill. It is true, that the bill does not seem to be framed to that end, but if there be error in this particular, in the frame of the bill, and the case can be covered by an amendment, it will be remanded under the Act of 1832, ch. 302, sec. ,6.
1st. In the execution of the power in relation to the $>4250, the terms and directions of the power have not been complied with, and hence, the power was not properly executed. A party creating a power has the right to fix the terms and manner of its execution. The intention of the parties here was, that any will which should be made in relation to this sum of $>4250 by virtue of the power, should be made and executed in strict accordance with the provisions of the Act of 1842, ch. 293. The contract requires the assent, in writing, of the husband, to any will executing the power, and it does not appear he even had any knowledge of an attempt to execute the power, and it is too well settled to admit of doubt, that in the execution of a power, the terms of it should be strictly complied with. 1 Coke's Rep., 173, Digges' Case. 1 Sugden on Powers, 301 to 303, and cases there cited. 3 East., 41)0, Hawkins vs. Kemp. The fact, that no asseni of the husband in writing, as required by the contract, appears, or appears ever to have been asked for, at least shows conclusively, that the- wife, when she executed this will, did not suppose she was exeputingthe power, and did not thereby intend to execute it. This fact, upon the question of intention, which will be discussed hereafter, appears to be conclusive. ,
2nd. The will of a feme covert, or any other person, to be a good execution of a power, must either refer to the power which it professes to execute., or to the subject matter on which the power was intended to operate; or it must distinctly appear that the party executing the power had no other property on which the power could operate. This principle has been established by a long series of decisions in the English courts, which cannot be questioned. 2 Brown's Ch. Rep., 297, Andrews vs. Em,mot. 2 Merivale, 533, Jones vs. Tucker. 1 Jac. &f Walk., 352, Webb vs. Honnor. 1 Swans., 67, Jones vs. Curry. 2 Atk., 68, Socket vs. Wray. 2 Ves., 589, Standen vs. Standen. 7 Ves., 391, Nannock vs. Horton. 13 Ves., 44.6, Bradley vs. Westcoll. 15 Ves., 532, Anderson vs. Dawson. 19 Ves., 86, Irwin vs. Farrar. 3 Mylne Keen, 666, Hughes vs. Tanner. 6 Bing., 475, Nowell vs. Roake. 3 Sim., 275, Lovell vs. Knight. 5 Sim., 108, Lempriere vs. Valpy. 14 Sim,., 22, Hansen vs. Miller. 1 Beav., 568, Tawney vs. Ward. 2 Spence's Eq., 495. 2 Sug. on Powers, 227, 228. 65 Eng. C. L. Rep., 934, Johns vs. Dickinson. The American cases and authorities are to the same effect. 4 Kent, 335. 1 Story's C. C. Rep., 427, Blagge vs. Miles. In Standen vs. Standen it was held that the will would not have any operation, unless it was to be considered as an execution of the power, as the testator had no real estate of his own, independent of the power, and, therefore, the intention to execute the power was manifest. The case of Churchill, vs. Dibben, decided by Lord Hardwicke in 1754, so much relied on by the counsel for the appellants, was decided upon the same principle as that of Standen vs. Stan-den, viz: that the will would have been inoperative, unless in execution of the power. The cases, Lovell vs. Knight, Lempriere vs. Valpy, and Johns vs. Dickinson, were all cases of wills by femmes covert, and are directly in point, and decisive of the question before the court, the last of them having been decided in 1849. The will here, does not refer to the power, nor to the subject matter of the power. It professes to pass all ■her estate, and it is clearly shown by the proceedings, that she had and owned for her separate use and benefit, real and personal estate upon which the will might operate, and in truth did •operate. The interest on the $4250 which she received for four years, and the rents and profits of her real estate, would amount to a considerable sum for the will to operate upon, independent of the power. In this State a feme covert can dispose of her own separate estate by will, for as to that she is considered a feme sole, 11 Md. Rep., 492, Cooke vs. Husbands. This case destroys entirely the applicability of the case of Churchill vs. Dibben, where it was decided the power was well executed, because a feme covert had no other capacity than what was given by the power,—in this State she has. But the very question has been decided by this court, with reference to the same power under the same will, in Michael vs. Baker, 12 Md. Rep., 169, where, in affirming the judgment of the orphans court, admitting this will to probate, the court say, that by the marriage contract she was entitled to hold certain funds specified therein, to her sole and separate use, which would pass under her will, though the power of disposing of them may not be expressly conferred upon her by the marriage contract.
3rd. The remedy of the appellants, if they have any, is in a court of law and not in equity. Where a party has full and complete remedy at law, equity has no jurisdiction, and will not interpose its aid. The only object of this bill is to recover a specific sum of money and interest, upon a covenant to pay. A court of law could give ample relief in such a case. Equity jurisdiction, by writers on the subject, is arranged under six heads: accident, account, fraud, infancy, specific performance and trust. It is true, that in some of these cases, courts of law and equity have concurrent jurisdiction; but this case falls under neither of these heads of equity. The appellee is not liable to the appellants, except upon the covenant. He is not a trustee for them—his liability to them is upon the covenant only, as the only trust created by the marriage contract was for the benefit of the wife, as a feme covert. It was necessary a trust should be created to control matter of property between husband and wife; but the moment the feme covert died, for whose use the trust was created, the trust ceased to exist, and the rights of ail other parties against the appellee were upon the covenant only, and a court of law has complete and exclusive jurisdiction. 1 Bald. C. C. Rep., 422, 423, Baker vs. Biddle. 7 Johns. Ch. Rep., 114, Kane vs.. Bloodgood.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
