#### William M. Martin and Wife *vs.*William Bell and Wife, and Others.

Testator declared as follows, “The property, real or personal, that my three daughters, M. M., N. J., and M. S., may or do receive by this, my will, I hereby settle it on them and the lawful issue of their bodies forever, and I do declare that it shall in no wise be subject the debts of their husbands, in no case *whatsoever*— Held, to create separate estates in the daughters.

BEFORE JOHNSTON, OH., AT FAIRFIELD, JULY, 1856.

Johnston, Ch. One of tbe objects of tbis bill is to obtain a construction of tbe fifth clause of tbe will of Tbomas Bell, wbicb is in these words: “ Tbe property, real or personal, that my three daughters, Margaret M., Nancy J., and Martha S., may or do receive by tbis, my will, I hereby settle it on them and tbe lawful issue of their bodies forever, and I do declare that it shall in no wise be subject the debts of their husbands, in no case whatsoever.” The questions submitted are, as to the quantity of the estate taken by the daughters, and whether the same are separate estates in Mrs. Bell and Mrs. Martin.

The opinion of the Court is, that as to the personalty, the wives take absolute estates, and as to the realty, fees conditional — and further, that these are “ separate ” estates.

The defendant, William Bell, elects, under these circumstances, that “ McVea place ” shall stand as a part of his wife’s separate estate, and he must deliver up to be cancelled, the deed executed by the executor, Edward M. Bell, to him, conveying these premises, referred to in the bill.

The plaintiffs suggest that Mrs. Bell has received more than her share in partition, and she must therefore hold this, as well as the other property received in the partition of 20th *43December, 1854, subject to Mrs. Martin’s lien for any deficiency in partition, if it should result in this deficiency being established, about which there appears to be no doubt.

*It is Ordered and*Decreed, That this opinion stand for a» decree; parties to be at liberty to apply at the foot, for such further orders as may be necessary. Costs to be paid out of the estate of the testator, Thomas Bell.

*It is further*Ordered, That it be referred to the commissioner to enquire and report as to the partition of the testator’s estate on 24th December, 1850, and whether it is expedient that the same be confirmed.

*It is further*Ordered, That the commissioner do also enquire and report as to the partition made 20th December, 1854, of that portion of the testator’s estate held by the widow for life, and what amounts are to be paid, and by which of the parties, to equalize the shares and finally adjust the same.

*It is further*Ordered, That the commissioner do take an account of the administration by Edward M. Bell, executor of the estate of the testator, Thomas. Bell.

The plaintiffs appealed on the ground:

Because, it is respectfully submitted, his Honor erred in holding, that by the fifth clause of testator’s will, a *“*separate estate ” was created in the portions devised and bequeathed to the daughters of the testator.

Boylsion, for appellants.

The opinion of the Court was delivered by

Dunkin, Oh.

In *Wilson*vs. *Bailer,*3 Strob. Eq. 260, it is said that a separate estate in the wife is the creature of the Court of Chancery, and in derogation of the husband’s common law right, and that, unless the intention to exclude the husband is clearly expressed, or arises by necessary im*44plication, tbe marital right is maintained. It is also there said that, in order to ascertain whether it was .intended to exclude the marital right, it is necessary to analyse the language used in every case. The instrument before us is testamentary. It was a provision of a father in favor of his daughters, two of whom were then unmarried women, and one (Mrs. Bell) married. The difficulty in reconciling the authorities arises from confounding the amplitude of the gift to the donee with an exclusion of the marital right. But if the intent to exclude may be fairly deduced from the language used, it is the duty of the Court to give effect to this as to every other lawful intention of the testator. The distinctions are sometimes nice. A gift to a married woman as her own in every respect, has been held not to exclude the husband. But in *Ex parte Ray,*1 Madd. 199, Sir Thomas Plumer held that a gift to “her sole use” gave a separate estate; and chiefly because of the technical character of the expression, *sole.*The language of this will is, in some respects, technical. *“*The property, real *“*or personal, that my three daughters may or do receive by “this, my will, I hereby *settle*it on them and the lawful issue “ of their bodies forever.” It may be that the word *settle*would only refer to the limitation of the estate. But he proceeds, “ and I do declare that it shall 'in no wise be subject to. “ the debts of their' husbands, in no case whatsoever.” Certainly it is not competent for a testator to give property to his son or daughter and take away the incidents of property. But it is not less clear that, according to well established principles of this Court, he may give property to his daughter, and, at the same time secure that property, from liability for her husband’s debts. But this can only be effected by construing the gift to create a separate estate. The intent to exclude the marital right in this case is demonstrated by declaring the property exempt from the principal incident of such right. *Weatherford*vs. Tate, 2 Strob. Eq. 27, has been supposed to conflict with the decision of the Circuit Chancellor. *45In that case slaves were "bequeathed to the daughters in terms which vested an absolute estate; but to the bequest was added this provision: “Ho sale made by either of their husbands “shall be valid, unless by the consent of both, or one of my “executors, and thus my executors have power to prevent “ such property being moved off the State.” This restriction upon alienation had no reference to the separate enjoyment of the wife, and was not intended to secure it. On the contrary apparently recognizing the title 'of the husband, the testator sought only to restrain the exercise of it so far as to prevent the removal of the slaves beyond the limits of the State. To accomplish this, he declared that any sale by the husband, must have the sanction of the executors, or one of them, in order to secure its validity. The Court could infer no intention to exclude a right from a provision that it shall not be exercised in a particular way. If the testator had provided that no husband of his daughters should require more than nominal wages from the slaves, this restriction could hardly be construed into an intent to secure a separate estate to his daughters, although if effectual, the provision would seriously impair the value of the husband’s enjoyment. Such the Court appear to have regarded the character of the restriction in *Weatherford*vs. *Tate.*“This provision,” say the Court, “was not a condition because there wasno for feit “ure, or penalty attached to it, and was utterly inconsistent “ with the general right of property, and could only operate “as a command or order that the property should not be “removed or sold, which the party might obey or not at his “pleasure.”

It- is ordered and decreed that the appeal be dismissed.

Johnston, Ch., concurred.

Daegan, Ch., absent at hearing.

*Appeal dismissed.*