The rule formerly with regard to the enforcement of marriage
articles which created executory trusts was this, namely that
chancery would interfere only in favor of one of the parties to the
instrument or the issue, or one claiming through them, and not in
favor of remote heirs or strangers, though included within the
scope of the provisions of the articles. They were regarded as
volunteers.
But this rule has in modern times been much relaxed, and may now
be stated thus -- that if, from the circumstances under which the
marriage articles were entered into by the parties or as collected
from the face of the instrument itself, it appears to have been
intended that the collateral relatives, in a given event, should
take the estate, and a proper limitation to that effect is
contained in them, a court of equity will enforce the trust for
their benefit.
The following articles show an intention by the parties to
include the collateral relatives:
"Articles of agreement made and entered into this 17th day of
February, in the year 1810, between John Neves and Catharine
Jewell, widow and relict of the late
Page 50 U. S. 197
Thomas Jewell, deceased, all of the state and county aforesaid,
are as follows,
viz.:"
"Whereas a marriage is shortly to be had and solemnized between
the said John Neves and the said Catharine Jewell, widow, as
aforesaid, are as follows, to-wit:"
"That all property, both real and personal, which is now, or may
hereafter become the right of the said John and Catharine shall
remain in common between them, the said husband and wife, during
their natural lives, and should the said Catharine become the
longest liver, the property to continue hers so long as she shall
live, and at her death the estate to be divided between the heirs
of her, said Catharine, and the heirs of the said John, share and
share alike, agreeable to the distribution laws of this state made
and provided. And on the other hand, should the said John become
the longest liver, the property to remain in the manner and form as
above."
Moreover, these articles are an executed trust, not
contemplating any future act, but intended as a final and complete
settlement.
Property acquired by either party after the marriage must follow
the same direction which is given by the settlement to property
held before the marriage, if there is a clause to that effect in
the same.
This was the case of a bill filed upon the equity side of that
court by William Neves, a citizen of Alabama, and James C. Neves, a
citizen of Mississippi, against Scott and Rowell, citizens of
Georgia.
The facts were these.
In the year 1810, John Neves and Catharine Jewell, widow of
Thomas Jewell, deceased, in contemplation of a marriage shortly to
take place between them, executed the following articles of
agreement.
"
Georgia, Baldwin County"
"Articles of agreement made and entered into this 17 February in
the year 1810 between John Neves and Catharine Jewell, widow and
relict of the late Thomas Jewell, deceased, all of the state and
county aforesaid, are as follows,
viz.:"
"Whereas a marriage is shortly to be had and solemnized between
the said John Neves and the said Catharine Jewell, widow, as
aforesaid, are as follows, to-wit, that all the property, both real
and personal, which is now or may hereafter become the right of the
said John and Catharine shall remain in common between them, the
said husband and wife, during their natural lives, and should the
said Catharine become the longest liver, the property to continue
hers so long as she shall live, and at her death the estate to be
divided between the heirs of the said Catharine and the heirs of
the said John, share and share alike, agreeable to the distribution
laws of this state made and provided. And on the other hand, should
the said John become the longest liver, the property to remain in
the manner and form as above."
"In witness whereof, the said John and Catharine hath
hereunto
Page 50 U. S. 198
set their hands and affixed their seals the day and year above
written."
"JOHN NEVES [L.S.]"
"CATHARINE her X mark. JEWELL [L.S.]"
"Test:"
"CORNELIUS MURPHY"
"JESSE WARD"
The marriage took place soon afterwards.
In October, 1828, John Neves made a will, and shortly thereafter
died By this will he directed commissioners to be appointed who
should divide his whole estate, both real and personal, equally
between his wife, Catharine Neves, and George W. Rowell, to whom he
devised his half, and appointed Captain Richard Rowell and Myles
Greene his executors.
In a codicil the testator directed that certain real and
personal property should be sold for the payment of his debts.
Greene declined to act as executor, but Richard Rowell took out
letters testamentary, and was proceeding to sell the property named
in the will when Catharine filed a bill against him in the Superior
Court of Baldwin County, and obtained an injunction upon him to
stay further proceedings. She produced the agreement above
mentioned, alleged that under it she was entitled to the whole of
the real and personal estate during her natural life, and offered
to give security for the payment of all his debts. The result of
this suit was that Rowell was allowed the expenses which he had
incurred whilst acting as executor, and Catharine gave bond, with
security, for the payment of the debts of the estate.
In 1835, Catharine intermarried with William F. Scott, and died
in September, 1844.
In February, 1845, William Neves and James C. Neves, the brother
and nephew of John Neves, filed their bill in the circuit court.
The bill stated the above facts; alleged that after the marriage
between Catharine and Scott all the property remained in their
joint possession until her death; that Scott was insolvent, and had
used a large amount of the money and proceeds of the estate in
payment of his debts; stated, as an estoppel, the former judgment
of a court in Georgia sustaining Catharine's right upon the ground
of the validity of the marriage settlement; charged waste, and
prayed for a discovery, and decree that they, the complainants,
might be put into possession of one-half of all the property which
was owned by John Neves and Catharine Neves. They also made Richard
Rowell a defendant.
Page 50 U. S. 199
In April, 1845, the defendants both demurred to the bill.
In April, 1846, the circuit court, then holden by John C.
Nicoll, the district Judge, sustained the demurrer, from which
decree the complainants appealed to this Court.
Page 50 U. S. 207
MR. JUSTICE NELSON delivered the opinion of the Court.
The bill was filed by the complainants in the court below, to
obtain the possession of the undivided half of an estate, embraced
in a marriage settlement between John Neves and Catharine Jewell,
entered into in contemplation of marriage, and which shortly
afterwards took place.
Each of the parties, being the owner and in possession of
considerable estates at the time, entered into the following
agreement:
"Articles of agreement made and entered into this 17 February,
1810, between John Neves and Catharine Jewell, widow, and relict of
the late Thomas Jewell, deceased, all of the state and county
aforesaid as follows: "
"Whereas a marriage is shortly to be had and solemnized between
the said John Neves and the said Catharine Jewell, as aforesaid,
are, as follows, to-wit, that all the property, both real and
personal, which is now or may hereafter become the right of the
said John and Catharine shall remain in common between them, the
said husband and wife, during their natural lives, and should the
said Catharine become the longest liver, the property to continue
hers so long as she shall live, and at her death the estate to be
divided between the heirs of her, said Catharine, and the heirs of
the said John, share and share alike, agreeable to the distribution
laws of this state made and provided. And on the other hand, should
the said John become the longest liver, the property to remain in
the manner and form as above. "
Page 50 U. S. 208
The parties after the marriage held and enjoyed their respective
estates in common during their joint lives and until the death of
John in 1828, and after his death the same remained in the
possession and enjoyment of Catharine, the survivor, until her
decease in 1844, since which time it has been in the possession and
under the control of William F. Scott, her second husband, and one
of the defendants. The other defendant is the executor under the
will of John Neves, the husband.
The complainants are the brother and nephew, and only surviving
heirs, of John Neves, and claim a moiety of the estate, according
to the terms of the marriage settlement. And the questions
presented in the case are upon the effect to be given to this
instrument.
The argument, on the part of the defendants, is that the deed is
to be regarded in the light of marriage articles, creating
executory trusts to be carried into execution at some future day by
an instrument that would operate to vest the estates according to
the stipulations in the articles. And that, as the agreement is
founded upon the consideration of marriage, and other
considerations moving only between the parties, the complainants,
being the collateral relatives of John Neves, do not, according to
the rules of equity applicable to this species of contract, come
within the reach and influence of the considerations, so as to
entitle them to the interposition of a court of chancery to enforce
the execution of the trusts. That where the trust is executory, and
rests merely in covenant, the court will interpose only in favor of
one of the parties to the instrument or the issue, or one claiming
through them, and not in favor of remote heirs or strangers, though
included within the scope of the provisions of the articles.
Fonbl., book 6, ch. 6, § 8; Atherly on Settlements, ch. 5,
125; 2 Story's Eq. §§ 986, 987; 2 Kent's Com. 173.
Upon this ground, the court below sustained the demurrer to the
bill, and denied the prayer of the complainants.
The numerous cases to be found in the books, several of which
were referred to in the argument on this subject, are by no means
uniform or consistent, and the general rule as stated, and upon
which the case below turned, has been made the subject of so many
exceptions and qualifications, that it can scarcely, at this day,
be regarded as authority.
Vernon v. Vernon, 2 P.Wms. 594;
Edwards v. Countess of Warwick, id. 171;
Osgood v.
Strode, id., 245;
Ithell v. Beane, 1 Ves.Sr. 215;
S.C., 1 Dick. 132;
Stephens v. Trueman, 1 Ves.Jr.
73, 74;
Pulvertoft v. Pulvertoft, 18 Ves. 90; 2 Kent's
Com. 172, 173; Atherly 145-148.
Page 50 U. S. 209
The case of
Vernon v. Vernon is a direct authority in
support of the limitation in question, and the other cases to which
I have referred are distinguishable only upon very technical and
refined reasoning, hardly reconcilable with a common sense
administration of justice. The principle is that, in order to bring
collateral relatives within the reach and influence of the
consideration, there must be something over and above that flowing
from the immediate parties to the marriage articles, from which it
can be inferred that relatives beyond the issue were intended to be
provided for, and that if the provision in their behalf had not
been agreed to, the superadded consideration would not have been
given.
That for anything short of this, they will be regarded as
volunteers, in whose favor a court of equity will not interpose
against the settler, or anyone claiming under him.
But while the rule seems generally to have been adhered to in
the form in which it is stated, it has been practically
disregarded, as the slightest degree of valuable consideration
imaginable is seized hold of to give effect to the limitation.
And it need not be made to appear that these slight
considerations were intended to support the provision for the
distant relatives, it being assumed by the court as a presumption
of law.
The Lord Chancellor, in
Stephens v. Trueman,
observed,
"The old rule was, and is now, although of late not so strictly
adhered to, that none can come here for a specific performance, who
do not come under the consideration of the agreement; as that it
shall not be for the benefit of collateral branches in marriage
articles; but, as agreements are entire, and the several branches
may have been in view, the court has in later cases laid hold of
any circumstances to distinguish them out of it, still preserving
the general rule."
And in
Edwards v. Countess of Warwick, the doctrine is
stated still more strongly, where the chancellor observed,
"that the consideration for the precedent limitations on a
marriage settlement has been applied even to the subsequent ones,
as where, on a consideration of marriage, and portion, land has
been settled on the husband for life, and then to the wife for
life, remainder to the children, with remainder to a brother, these
considerations have extended to the brother, and the reason is,
because it may be very well intended, that the husband, or his
parents, would not have come into the settlement, unless all the
parties thereto had agreed to the limitation to the brother."
The result of all the cases, I think, will show that if,
from
Page 50 U. S. 210
the circumstances under which the marriage articles were entered
into by the parties, or as collected from the face of the
instrument itself, it appears to have been intended that the
collateral relatives, in a given event, should take the estate, and
a proper limitation to that effect is contained in them, a court of
equity will enforce the trust for their benefit.
They will not be regarded as volunteers outside of the deed, but
as coming fairly within the influence of the considerations upon
which it is founded; the consideration will extend through all the
limitations for the benefit of the remotest persons provided for
consistent with law.
The provisions in the deed before us are very peculiar, and
different from any that have come under my observation in an
examination of the cases, and, of themselves, would probably be
sufficient to distinguish it from all of them in which the general
rule has been applied.
The collateral relatives of the parties to the instrument seem,
not only to have been within their contemplation at the time, but
to have been the direct and special objects of their bounty.
None of the limitations are in favor of the issue of the
marriage,
eo nomine, usually found in these instruments,
but are in favor of the several heirs of each of the parties, as a
class, the estate to be divided equally between the two. The
settlement seems to negative the expectation of issue, and seeks at
once to provide for the collateral relatives, as the peculiar
phraseology would hardly have occurred to the most inexperienced
draftsman, if he had had in his mind at the time the issue of the
marriage.
It is true the children or grandchildren coming within the
description of the limitation to the heirs of each of the parties,
being the heirs of both, would, if they survived the parents, take
the estate to the exclusion of the collateral branches, but this
would seem to be an accident, rather than a result to be derived
from the frame of the limitation, as that looks directly to a
provision for the separate and several heirs of each of the
parties, and to an equal division of the estate between them.
Each of the parties appears to have been in the possession of
considerable estates which was the largest is not stated, and on
the event of the marriage, both were to become common property
during their joint lives and the life of the survivor, and, instead
of providing for the return of the separate estate of each, on the
termination of the lives, into the channel from which it was
diverted by the marriage contract, they agree that the joint estate
shall be divided equally, and that each moiety shall take that
direction and the distributed in their respective families.
Page 50 U. S. 211
To refuse to carry into execution this arrangement, therefore,
would be,\ in effect to overthrow the settlement and defeat not
only the manifest intent, but the leading design, of the parties
entering into it. None of the cases relied on, I think, go this
length.
But, without pursuing this branch of the case farther, or
placing our decision upon it, there is another ground,
unembarrassed by conflicting authorities or refined distinctions,
which the court are of opinion is decisive of the questions
involved in favor of the complainants. And that is that the deed in
question is a marriage settlement, complete in itself -- an
executed trust, which requires only to be obeyed, and fulfilled by
those standing in the relation of trustees, for the benefit of the
cestui que trusts, according to the provisions of the
settlement.
The defendants are not called upon to make a settlement of the
estate, under the direction of the court, from imperfect and
incomplete marriage articles, and which might or might not be
subject to the objections stated.
The settlement has been made by the parties themselves, and the
only question is whether the defendants shall be compelled to carry
it into execution.
The distinction between trusts executed and executory is this: a
trust executed is where the party has given complete directions for
settling his estate, with perfect limitations; an executory trust
where the directions are incomplete and are rather minutes or
instructions for the settlement. 1 Mad.Ch. 558; 2 Story's Eq.
§ 983
The former, as observed by Lord Eldon, in one sense of the word,
is a trust executory -- that is, he observes, if A.B. is a trustee
for C.D., or for C.D. and others, that, in this sense, is
executory, that C.D., or C.D. and the other persons, may call upon
A.B. to make a conveyance, and execute the trust, but these are
cases where the testator has clearly decided what the trust is to
be, and as equity follows the law where the testator has left
nothing to be done, but has himself expressed it, there the effect
must be the same whether the estate is equitable or legal.
Jervoise v. Duke of Northumberland, 1 Jac. & Walk.
550. The remarks were made for a different purpose than the one in
view here, but they afford a clear illustration of the distinction
stated.
Now the only plausible ground for contending that this
instrument imports but mere articles, as contradistinguished from a
marriage settlement, is that in the caption it begins, "Articles of
agreement," &c., but it is to be observed that the deed
Page 50 U. S. 212
is drawn up somewhat unskillfully, and without much regard to
form, and that the draftsman had not probably in his mind, if even
he was aware of, the technical or legal distinction between the two
instruments, and besides, and what is more material to the purpose,
we must look to the body of the instrument, its provisions and
tenor, and to the intent of the parties, as collected from the
whole, in order to determine its character and effect.
Courts will endeavor, as much as possible, to give effect to
marriage agreements according to the understanding of the parties,
and where they evidently considered the instrument in the light of
a final and complete settlement, not contemplating any future act,
it will be so regarded, and in order to effectuate their intent,
one part of the instrument even will be taken as a complete
settlement of the estate comprised in it, and another part as mere
articles.
In the case before us, every portion of the estate is definitely
settled both in respect to the amount of the interest, and the
particular persons who are to take; the limitations leave no part
undisposed of; estates for life, and in remainder in the property,
are limited with all the formality required to enable a court of
equity to carry the trust into execution, according to the intent
of the settlers. There is nothing in the instrument contemplating
any further act to be done by them.
The practical construction also accords with that derived from
their language. The estate was possessed and enjoyed under it, by
both or one of them, from 1810 to 1844, a period of thirty-four
years.
If a third person had been interposed, as trustee of the
estates, with the limitation as found in the instrument, no one
could for a moment have doubted but that the settlement would have
been final and complete, and yet it has long been settled, that
equal effect will be given to it in equity, when made only between
the parties themselves; each one will be regarded, so far as may be
necessary to effectuate their intent, as holding their several
estates as trustees for the uses of the settlement. 2 Story's
Equity § 1380; Fonbl., book 1, ch. 2, § 6, note n; 2
Kent's Com. 162, 163; 9 Ves. 375, 383; 3 Johns.Ch. 540. There can
be no objection to the execution of the trust on this ground.
It appears from the bill, that portions of the estate in the
possession of the defendants were acquired by the parties to the
settlement, subsequent to its execution, and it is supposed that
this consideration is material in determining its character, and
that if it should be regarded as a settlement, and not mere
Page 50 U. S. 213
articles, these subsequent acquisitions would not be bound by
it. But this is a mistake.
The instrument provides for subsequently acquired property by
either of the parties, as well as the present, and in such cases
there is no doubt but that it follows the limitations of the
settlement, the same as the property then in possession. 10 Ves.
574, 579; 9
id. 95, 96; 7
id. 294; 6
id.
403, note, Boston ed.
Looking, then, at the instrument as complete in its directions
and limitations in the settlement of the estate, and as presenting
the case of an executed trust, the difficulty set up against the
complainants when claiming under marriage articles disappears, for,
being the beneficial owners, and vested with the equitable title, a
court of equity will interpose, and compel the trustee, or anyone
standing in that relation to the estate, to vest them with the
legal title.
We are of opinion, therefore, that the court below erred in
giving judgment in favor of the defendants on the demurrer to the
bill, and that the decree should be
Reversed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Georgia, and was argued by counsel. On consideration whereof, it is
now here ordered, adjudged, and decreed by this Court that the
decree of the said circuit court in this cause be and the same is
hereby reversed with costs, and that this cause be and the same is
hereby remanded to the said circuit court, for further proceedings
to be had therein in conformity to the opinion of this Court.
