#### Watson *v.*Bonney and Others.

A woman, in contemplation of marriage, by deed dated previous to the act for the more effectual protection of the property of married women, conveyed her estate, real and personal, to a trustee, in fee and absolutely, reserving to herself only the entire control of the income for her separate use for life, the direction of the investment and re-investment of the capital by the trustee, the poVVer to dispose of the whole by au instrument in the nature tif a will, and the full restoration of the property if she survived her intended husband. And the trust-deed provided, that in case of the decease of the grantor without making any appointment, the trustee should pay over and transfer the trust estate “ *to suck person or persons as would be her legal representatives by the statute, for the distribution of intestates estates.” Held,*that a complaint by the grantor, subsequent to the marriage, and during the life of her husband, brought for the purpose of having the marriage settlement set aside, and the capital of the estate given to her as she held and owned it previous to the date of the conveyance, could not be sustained, the infant children of the plaintiff having a contingent future estate in the property, which the court could not divest.

*Held also,*that if the property had been limited over to the “ legal representatives" of the grantor, simply, the husband would, at his wife’s death, have taken the property either beneficially, or officially, as her personal representative j but that the addition of the words “ by the statute of distributions,” changed the devolution totally, and carried it to the next of kin, to the exclusion of the husband.

*Held, further, that*the rights and interests of the parties, under the trust-deed, were not in any wise affected by the provisions of the act of 1848, “ for the more effectual protection of the property of married women.” And that the rule would be the same, even upon the assumption that the children of the plaintiff had no rights, under the settlement.

The object of that act was not to enable married women to destroy their marriage settlement, by which tbeir property had already been effectually protected for the benefit of themselves and their children.

The statute does not profess to interfere with existing contracts, and the court cannot give it a retrospective action by intendment. If it had, in terms, been made applicable to executed settlements, and had divested the estates of the trustees, it would have been utterly nugatory and unconstitutional. Per Sandford, J.

March 22, 31, 1849.

This was an action commenced since the adoption of the code, to vacate and annul a trust-deed, executed by the plaintiff, in and by which she had, prior to her marriage, conveyed and transferred all her estate, real and personal, to the defendant, Bonney, as trustee. The facts, as they appeared in the *406complaint, are briefly these. ■ On the 19th of May, 1846, an instrument in writing, in the nature of a trust-deed, was made and executed between the plaintiff, then a widow, of the first part, Benjamin W. Bonney of the second part, and Alexander T. Watson of the third part, by which the plaintiff, in contemplation of marriage with Watson, transferred all her real and personal estate to Bonney, as trustee, under certain trusts and provisions therein contained. By the deed, the plaintiff reserved to herself the entire control of the income for her separate use during life.; also, the direction of the investment and re--investment of the capital by the trustee, in case of a sale or exchange of any part of the estate, the power of disposing of the estate by an instrument in the nature of a will,- and the full restoration of the property in case she survived her husband. Subject to these trusts, the conveyance was in fee and absolute. So long as the coverture continued, the settlement gave her no interest in the capital; and she possessed no power to dispose of the estates,, by any conveyance,- which could take effect during her life. It was also provided in the trust-deed, that in case of the decease of the plaintiff, without making a disposition of the property, then; that the trustee should pay over and transfer the legal estate to such persons *as would be the legal representatives of the plaintiff, by the statute for the distribution of in-testates estates.*Alexander T. Watson assented to the provisions of the trust-deed, and covenanted not to interfere with the trust-estate, otherwise than in conformity to the provisions of the same. The instrument was executed and acknowledged in due form, and delivered and recorded in the office of the register of the city and county of New York. The marriage between -the plaintiff and Watson took place May 00th, 1846. The trustee immediately took possession of the trust estate, and has ever since continued in possession, receiving and collecting the income of the same, and paying it over to the plaintiff. The plaintiff sought to vacate the trust-deed, on the ground that, by the act entitled, 16 an act for the more effectual protection of the property of married Women,” passed April 7, 1848, she may now take and hold the estate, without the intervention of a trustee, in her own name and-right,- and not subject *407to the disposal of her husband. The complaint prayed that the trustee under the deed, might account, pay over, and transfer to the plaintiff, all the trust estate which had come to his hands, and the income thereof not previously paid over, and that she might hold the same in her .own name and right, as if she were a single female.

The trustee and the three infants, children of the plaintiff, were made parties defendant, as having, or claiming to have, some interest in the estate, Watson was not made a party. The defendant, Bonney, demurred to the complaint, on the grounds, that the plaintiff had no legal capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action.

The three infant defendants appeared, by Orsamus Bushnell, their guardian ad litem, and answered that they were infants under the age of 14 years, and submitting their interests in the matter in controversy, to the protection of the court.

*C. S. Roe,*for the plaintiff.

I. The complaint in this cause is properly filed by the plaintiff in her own name, without the intervention of a next friend. The action coneerns her own separate property, and she may sue alone. (Code of Procedure, sec. 94. Laws of 1848, page 515.)

II. Under the act entitled *“*An Act for the more effectual protection of the rights of married women,” passed April 7, 1848, the separate property of the plaintiff is effectually protected from any interference or control of her husband, and from liability for his debts. She may now safely hold, control, and manage the same in her own name, and it is her right so to hold and manage it. (Laws of 1848, page 307.)

III. The object, purpose, and effect of the deed, dated May 19, 1846, was to vest in the party of the second part, as trustee, the legal title to the property thereby conveyed, so as to secure to the party of the .first part (the plaintiff) the sale and entire use and benefit of such property, and to give to her the absolute control and disposition thereof, and at the same time to protect it against the debts and acts of her husband. This is manifest *408from the terms of the *deed;*the result of which is to give to the plaintiff the entire control of the estate. Consequently, since the passing of the act of April 7, 1848, she may and is entitled to take, hold, and manage it in her own name.

*B. W.*Bonney, in person.

I. The interest, object and effect of the trust deed was, (in contemplation of the marriage of the plaintiff,) to vest the title to her separate property from and after the solemnization of the intended marriage, in a third person upon certain trusts.

The effect of the deed was to give to the plaintiff the right to control and direct the investment of the trust property ; to take to her own use all the income during her life, and, upon the decease of her husband, leaving her surviving, to take to herself again the whole property. Also, in case of her death before the decease of her husband, to dispose of the whole property by will; but if she shall fail to exercise such power of disposal, the property, upon her decease during the life time of her husband, is secured to her personal representatives, such personal representatives may be her children, (if then surviving,) or other persons. And they have an interest, contingent to be sure, and uncertain, but still an interest, which maybe defeated by a present transfer to the plaintiff. If the property be now transferred to the plaintiff, it will be at her absolute disposal, and may be spent or lost, and then, in case of her death before the decease of her husband, and without having exercised the power of disposition given by the trust deed, nothing will remain to her legal representatives. In that event, they might hold the trustee responsible.

II. By the 4th section of the act of April 7, 1848, (Laws of 1848, p. 307,) it is enacted, that “ AU contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.” The trust deed in question is such a contract, and is protected by that section. It is not permitted to the court to annul it.

III. The trustee has no personal interest in retaining the property, nor any wish to retain it, if he can safely part with it. But no present judgment of the court can protect him against contingent liability to third persons now unknown, who may *409become entitled to the property under the trust deed. Even the infants who are made parties defendant, would not be precluded by the judgment in this suit, should it be hereafter held that they, under the trust deed, had an interest, however remote or contingent, in the trust property which was not divested or cut off according to the provisions of the deed.

IY. The trustee cannot safely part with the trust property; and no judgment of the court can protect him against the contingency of future liability. The complaint should therefore be dismissed. In any event, as the trustee has acted in good faith, and solely with a view to protect himself and the estate, the costs should be paid out of the trust estate, or by the plaintiff.

*W. Bliss,*for the infant defendants.

I. The infants have an interest in the question to be decided by the court. They have been made parties by the act of the plaintiff, and have a right to state any valid legal objections to any action of the court, which either will be, or in any event may be, prejudicial to their interests.

II. In case of the decease of the plaintiff after the marriage, and during the life time of the intended husband, and in default of her making any appointment, then the trust is, that the trustee, after the decease of the plaintiff, shall pay over and transfer the trust estate to such person or persons as would be the legal representatives of the plaintiff by the statute for the distribution of intestate’s estates. In case of the decease of the husband during the life time of the plaintiff, the trust is to pay over and transfer the trust estate to her. These are alternative provisions. The persons who would be the legal representatives of the. plaintiff by the statute for the distribution of intestate’s estates, are the children. They are intended, (2 R. S., part 2, eh. VI., article 3, title. Ibid. p. 96, sec. 75, subd. 4. See also, 1 R. S. 751, sec. 1;) at least primarily. They presumptively are the next of kin, upon the decease of the plaintiff The main object of the clause in question must have been to provide for the children of the marriage. In further illustration of this point we say,

(1.) That the words *u*legal representatives” may mean chib *410dren. (See *Horspool*v. *Watson,*3 Ves. 383 ; *Bridge*v. *Abbott,*3 Brown Ch. R. 226, 227; and the use of the words in 2 R. S. 96, sec. 75.) In the statute of distribution, they mean children, or in default of them, other lineal descendants. At other times, the words mean descendants, *(Styth*v. *Monro,*6 Simons, 49,) or next of kin. *(Bridge*v. *Abbott,*3 Brown’s Ch. R. 224; *Jenning*v. *Gallimore,*3 Ves. 146; *Long*v. *Blackull,*3 Ves. 486; *Robinson*v. *Smith,*6 Simons, 47; *Walter*v. *Makin,*6 Simons, 148.)

(2.) The husband is not intended. He is not next of kin ; (Ward on Legacies, 112;) nor entitled under the statute of distribution ; (2 R. S., part 2, ch. 6, art. 3.)' The representation intended is not of office, but of right. The word is “ representatives” in the plural number ; not representative. If the husband had been intended, a simple form of expression would also have been used. The words are not strong enough to divest the infants of their inheritance.

(3.) What may be the precise interest of the children, and how far vested or contingent, is submitted to the court. If contingent, they are still necessary parties, and entitled to be heard in vindication of their rights. (Calvert on Parties, 189, *et seq.)*

III. If the “ persons who would be the legal representatives” of the plaintiff cannot be ascertained until her death, the court ought not, without any apparent necessity, to decide upon the rights of such parties in their absence. They would probably not be bound. Should the plaintiff survive her husband, this provision would never take effect or require decision. And the trustee for want of proper parties, might not be protected by the decree. (Calvert, *supra.)*

IV. The provision for the children is reasonable ; and there is no equitable ground upon which a court of equity should lend its aid to disturb it. (2 Kent’s Com. 174; *Lowry*v. *Tiernan, 2*Harr. & Gill. 34.)

Y. The marriage settlement relates to both real and personal estate. So far as the trust estate consists of real estate, the interests of the trustee and of the wife are respectively inalienable. (1 R. S. 730, sec. 60, 63, 65 ; *Coster*v. *Lorillard,*14 Wend. 265 ; see pages 303, 304, 331, 333; *Hawley*v. *James,*16 Wend. *411118, 120, 121, 164, 165.) The trust estate of that species cannot therefore be destroyed by the concurrent act of all the parties to the deed uniting in a conveyance. (See American Law Mag. for July, 1844, p. 297.) Consent is immaterial. The plaintiff asks the court to decree that the trustee shall do precisely what he is prohibited from doing by statute. If the plaintiff could alien or release her own interest, and thus, so far as respects herself, destroy the trust, she could not affect the interest, vested or contingent, which is limited upon her decease in the life time of her husband. The power to alienate, conferred by the trust deed, is for investment only.

VI. The 4th section of the act of 7th April, 1848, (Session Laws of 1848, p. 307,) expressly enacts that “All contracts made between persons in contemplation of marriage, shall remain in full force after the marriage takes place.” This, in the first place, has the effect of an exception of such contracts from the operation of the act. But, secondly, it is a substantive enactment that all valid contracts, past or future, of that sort, shall remain or continue in full force, from the time of the marriage, when that has once taken place. This accords with the general intent of the act, which was designed “'for the more effectual protection of the property of married women.” The plaintiff asks the court to decree that this contract, “ made in contemplation of marriage,” shall not remain in force, after the marriage has taken place. Past contracts in contemplation of marriage, are within the principle of protection intended by this section, by equal and even higher reason than future contracts. “ Takes place” is present, and as applicable to the past as the future. The intent is to declare ante-nuptial contracts inviolate only where the contract is followed by marriage.

VII. The second section of the statute should be so construed as not to affect existing marriage settlements.

(1.) Because the constitution of the United States prohibits a state from passing “ a law impairing the obligation of contracts.” (Const., art. 1, sec. 10, sub. 1.)

(2.) Because the final clause of that section, to wit: “ Except so far as the same may be liable for the debts of her husband *412heretofore contracted,” shows that the section relates to property that may be thus liable.

(3.) Because the language of the section is, *“*The real and. personal property, and the rents, issue and profits thereof, of any female now married.” And under the revised statutes, a *cestui que trust*takes in lands *“*no estate or interest,” but only “ may enforce the performance of the trust in equity.” (2 R. S. 729, sec. 60.) The language of the section is not appropriate to trust property.

(4.) The reason of the enactment does not exist in the case of poperty secured by marriage settlement, as the protection of the statute is unnecessary, when there is a marriage settlement. The case is not within the supposed mischief.

(5.) The section being in derogation of the common law, should be construed strictly. It should be held not to affect the poperty or rights of a trustee or third person.

The act does not retrospect to the marriage. If not confined to property acquired after the passage of the act, *(Dash*v. *Van Kleeck, 7*Johns. 497,) the language should be restrained to such as is within the supposed mischief, and to such as without the protection of the act, would be at the disposal of the husband, and liable for his debts.

X. If not to be so construed, the section is unconstitutional. (Const. of U. S. *ubi supra ; Dartmouth College*v. *Woodward,*4 Wheat. 518, 695, 696, 7, 8; *Fletcher*v. *Peck,*6 Cranch, 136.)

X. The section is also unconstitutional, because where there is no marriage settlement it affects the rights of property vested in the husband by the marriage.

(1.) Those rights are a part of the contract of marriage. The law of the matrimonial domicil, or law under which the marriage took place, which must be presumed to have been the law of this state, the present residence of the parties, or at least to have been the common law, being part of the contract. (Story on Conflict of Laws, last ed., ch. 6, secs. 158, 159.)

(2.) Those rights are vested rights. By the marriage, the husband acquires a freehold interest, during the joint lives of himself and wife, in all such freehold property of inheritance as she was seised of at the time, or may become seised of during *413coverture. Upon the birth of issue, capable of inheriting, he becomes tenant by the curtesy initiate, and on the death of his wife, tenant by the curtesy consummate. (1 Roper on Husband and Wife, 3, 5.) Marriage is an absolute gift to the husband of all personal property of the wife, in possession, belonging to her at or during marriage ; (1 Roper on Husband and Wife, 169;) and a qualified gift, that is, subject to survivorship, of her chattels real, possessed by her during marriage; (Ibid. 173;) and of her choses in action, belonging to her at marriage, or acquired during coverture., (Ibid. 203, 224, 225.) He may alien the former, and assign, release, or collect the latter. “ The legal assignment of a marriage,” says Lord Meadowbank, M operates without regard to creditors the world over.” *(Royal Bank of Scotland*v. Smith, 1 Rose Cas. Bank. Appendix, 491.) These vested rights cannot be taken away by statute. The legislature can take away private property for public uses only, and upon making suitable compensation. (State Const. of 1846, art. 1, sec. 1; Ibid. sec. 7; *Taylor*v. *Porter,*4 Hill, 140, and cases cited ; *Fletcher*v. *Peck,*6 Cranch, 135; *Terrett*v. Taylor, 9 Cranch, 50.)

XI. As neither the settlement, nor the property embraced in it, are affected by the act of April 7, 1848, except to preserve and perpetuate, the whole ground and object of the complaint must fail.

XII. The infant defendants are entitled to their costs, and a reasonable counsel fee, out of the estate.

By the Court. Sandford, J.

In May, 1846, the plaintiff, then a widow, conveyed and transferred all the property in question to a trustee, in fee, and absolutely. The only rights she reserved were, the entire control of the income for her separate use during her life, the direction of the investment and re-investments of the capital by the trustee, the power to dispose of the whole by an instrument in the nature of a will, and the full restoration of the property, if she survived her intended husband. So long as the coverture continued, the settlement gave her no interest in the capital, and she had no power of disposal which could take effect during her life.

*414The intended husband joined in the conveyance, and covenanted not to interfere with the trust estate otherwise than in conformity to the provisions of the settlement. He is not at liberty, therefore, by assent or acquiescence, to* defeat or impair the designs of the trust.

In the event of the plaintiff's death,, leaving her husband surviving, and without having made any appointment, the trustee is required to pay over and transfer the trust estate “ *to sack person or persons as would be the legal representatives"*of the plaintiff, ‘* *by the statute for the distribution of intestate's estates."*

The first question argued arises upon this clause of the settlement. It is claimed, on the one hand, that if the plaintiff die, leaving her husband and children surviving, the husband will take the trust estate • and on the other hand, that it will all devolve upon the children.

Conceding for the argument, that if there be both husband and children living at the death of the plaintiff, the former would be entitled to the capital of the trust estate, in default of an appointment r the nature of the respective interests in the property, at this time, are as follows:

The whole *estate*is in the trustee. The plaintiff has a trust interest in possession, in the income of the property, for life, with a future absolute interest in trust, which is contingent upon her surviving her husband; and a power to' dispose of the whole by will. The husband has a future trust interest in the capital, contingent upon his surviving the plaintiff, and • which, if it ever vest in him, in possession, will also be an absolute estate. The children have no interest in the property. They have merely probable advantage in the continuance of the trust, so that they may become appointees under the power. This is putting the case in its strongest possible aspect for the plaintiff, and what is the result ?

First.—As to the real estate, neither the plaintiff nor her husband have any estate or interest in the property itself. They have only a right in equity to have the trust executed. (1 R. S. 729, § 60.) The plaintiff's right to receive the income is inalienable. (Ibid. 730, §.63.)

*415Next.—As to the personal property, the settlement restricts the disposal of the income, and prohibits the consumption of the capital. It is a contract, which the plaintiff, at least before the act of 1848, had no capacity to alter, and the husband is prevented by his covenant from interfering in the matter. However, in respect of the whole fund, both real and personal, the trustee is forbidden by law, to do any act in contravention of the trust. And the husband’s trust interest in the personalty, being both future and contingent, it is subjected to all the fetters upon alienation provided in the statute of uses and trusts. (L R. S. 730, § 65 ; 773, § 2.)

Such being the state of the rights and interests of these parties, at the passage of the act of L848, entitled “ An act for the more effectual protection of the property of married women.” (Laws of 1848, ch. 200, page 307,) are they in any wise affected by its provisions?

The second section, on which the plaintiff relies, enacts that “ the real and personal property, and the rents, issues and profits thereof of any female now married, shall not *be*subject to the disposal of her husband, but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted.” The object of the statute, as expressed by its title, assuredly, was not to enable married women to destroy their marriage settlements, by which their property had already been “ effectually protected,” for the benefit of themselves and their children. All experience demonstrates, that vesting the wife with unlimited control of her property, will place it in far greater jeopardy than limiting it by a judicious settlement.

To apply the act to this estate. What was the real and personal property and its income, belonging to the plaintiff, which by the act were to be her sole and separate property, as if she were a single female ? Not the property which she owned before her marriage, and as it existed when the settlement was executed. She had parted with that, irrevocably, to the trustee. All the property she had, at the passage of the act, was her interest, present and future, in the trusts created by her conveyance to the trustee, to be exercised over and upon the *416property transferred to him. Such right and interest as she had, was her *sole and separate property*at the passage of the act, as effectually as it was possible to be in the nature of things. If she were a single female, she could not alter her executed conveyance to the trustee. The statute, therefore, did not affect it, for the plain reason, that she had already all the control that the statute aimed to give.

The effort and the argument, on the part of the plaintiff, is not to have a more enlarged control of her property, as she held it under the marriage settlement; but to set aside the settlement and give to her the capital of the estate, as she held and owned it before her conveyance to the trustee.

The statute does not profess to interfere with existing grants and contracts, and if there were no other obstacle, we cannot give it a retrospective action by intendment If, however, it had, in terms, been made applicable to executed settlements, and had divested the estates of the trustees, it would have been utterly nugatory.(a) The plaintiff’s grant to the trustee is a contract, and even the possibilities created by it, are perfect rights of property, held under an executed contract. A statute impairing this grant would be void, by the provision in the constitution of the United States, against enactments by the states impairing the obligation of contracts.

The result is, that assuming the children have no rights in the settlement, the statute of 1848 does not affect it, and the parties in interest are precluded by the statute of trusts, from revoking the conveyance to the trustee.

If, perchance, we have taken too restricted a view of the effect of the settlement, and the capacity of the parties to reconsider and annul it, since the act of 1848, there can be no doubt that the trust is irrevocable by this court, as well as by the parties, provided the children are to take in default of an appointment, on the death of the plaintiff in her husband’s lifetime. In the event of such default the property is to devolve *417upon those who are the plaintiff’s legal representatives, by the statute of distributions.

The term “ legal representatives” is not used in this instrument in its ordinary sense. It clearly does not mean executors or administrators. It is those legal representatives who are designated by the statute of distributions of intestate’s estates. Now the husband, at no period of the law, has taken the wife’s personal property at her death, *“ by the statute of distribu*tions,.” He is entitled to it by the rules of the common law and would take it if the whole statute law were silent on the subject. The only reason for mentioning the husband’s right in the statutes relative to administration and distribution, is in the one case to regulate the claim to administer, and in the other, from abundant caution, to exclude any possible mis-application of the section governing the distribution of intestate’s personal effects. (See *2*R. S. 75, § 39, 30; Ibid. 96, 97, § 75, 79 ; 1 Rev, Laws, 313, 314.)

The husband would, at her death, be the plaintiff’s legal representative, (in the sense in which the words are used in this instrument,) by the rules of the common law; her children and their issue, would be her legal representatives by the statute of distributions. If the language had been simply, her “ *legal representatives,”*the question would have been between the husband and the administrator; and as our statute grants administration to the husband, he would have taken the property either beneficially, or officially, as such representative. But we think the addition of the words “ *by the statute of distributions,”*cha ges the devolution totally, and carries it to the next of kin, to the exclusion of the husband.

We find no parallel case in the reports, though there are several, either analogous in principle, or in favor of excluding the executors and administrators ; among which are *Walter*v. *Makin,*(6 Simons, 148;) *Cotton*v. *Cotton,*(2 Beavan, 67;) *Booth*v. *Vicars,*(1 Collyer’s Ch. C. 6 ;) and the cases collected in 2 Jarman on Wills, 39, &c.

In this construction of the trust deed, the infant children of the plaintiff have a contingent future estáte, which the court cannot divest, and which the statute of 1848 would have failed *418to affect, if it had attempted it in. terms. And further,, all the future issue of the marriage- will have similar estates, which any decree in this suit could not affect or impair.

The complaint cannot be sustained, and there must be judgment for the defendants.

(a)

*Holmes*v. *Holmes,*(4 Barb. Sup. Court Rep. 295;) *White*v. *White,*(5 Id. 474.)