Savage and Judge Bronson held that such a trust was void; while Chancellor Walworth and Judge Nelson held it to be valid. (See Coster v. Lorillard, 14 Wend. 320, 351, 377, 331, 394. Hawley v. James, 16 id. 156. Gott v. Cook, 7 Paige, 539.)

The question was at length definitively settled in favor of the validity of such a trust, by the court of appeals, in Leggett v. Perkins, (2 Comst. 297.) This expression has been supposed to be equivalent to a direction to apply the income to the use of the beneficiary. Either expression is therefore proper; and that power should be selected which is the most appropriate to the circumstances and condition of the party to whom it belongs.

It should also be provided in the marriage settlement, not only that the payment of the income by the trustee to the wife, should be a valid payment, but that her receipt therefor, without the interference of her husband, should be a protection to the trustee.

There was at an early day, before the revised statutes, a difference of opinion between Chancellor Kent and the court of errors, with respect to the power of a married woman under a marriage settlement over her separate property. The chancellor thought that she must execute the power in the manner pointed out in the articles ; and that she was to be treated as a feme sole, only to the extent of the power given her in the marriage settlement. The court of errors held, that though a particular mode of disposition was especially pointed out in the settlement, it would not preclude the wife from adopting any other mode of disposition, unless she was expressly restrained in the instrument to a particular mode. (See Jaques v. Methodist Epis. Ch. supra, and S. C. 3 John. Ch. 87.)

The decision of the court of errors rendered the wife more completely and absolutely a feme sole in respect to her separate property, than was before supposed to be the case. The limitation in marriage articles to a particular mode of alienation, was intended as a check to the secret and insensible but powerful marital influence, which might be exerted unduly, yet in a manner to baffle all inquiry and detection. (2 Kent's, Com. 166.) The difference between the two courts is now of little consequence in this state. In cases falling within the acts of 1849 and 1860, the wife is left wholly without control as to the mode of alienation; and in cases, if there be any, not within those statutes, the framer of the marriage articles can easily restrict the unmarried woman to a particular mode of disposition, and require the consent of her trustee, if such a safeguard

against the influence of the husband is desired. The rule as originally declared by the chancellor, seems to have been preferred in other states. That decision was made before the revised statutes, was grounded upon the common law.

and

Marriage settlements are usually dictated by the prudence and forethought of parents or friends, from an anxious desire to protect the wife from the consequences of the improvidence, misfortunes or vices of the husband. Unless it was competent to prevent the wife from anticipating her income, by an entire disposition of the whole at once, the provision in her favor would be found to be fruitless. If her power of alienation over her separate property is left the same as it is under the acts of 1849 and 1860, there is nothing to prevent her from yielding to the importunity of her husband, and to surrender at once the fund which was intended to afford her a support for life. To prevent this, a clause against anticipation was formerly allowed to be inserted in the marriage articles. The revised statutes, while they do not forbid, seem to render this unnecessary; for they have thrown an effectual protection over the interest of persons not able to protect themselves. The 63d section of the statute of trusts (1 R. S. 730,) enacts that no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign, or in any manner dispose of such interest; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created is assignable. And the 65th section of the same title enacts that when the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be void. These sections have received the authoritative exposition of the courts. In L'Amoreux v. Van Rensselaer, (1 Barb. Ch. 37,) the chancellor said that previous to the adoption of the revised statutes, a trustee might hold the mere naked legal estate in real property, for a feme covert, while the whole equitable interest and estate therein was in her, and subject to her control. In relation to such an estate, therefore, she was considered as a feme sole, and could charge her equitable interest in the property with any debt she might think proper to contract on the credit thereof, which was not inconsistent with the trust or with the nature of her interest in the premises, and which was authorized by the instrument or conveyance creating the trust. All such mere personal trusts, even in favor of femes covert, are now abolished, and in the few cases which are authorized by the revised statutes, the

284 SUCH CLAUSE NEEDLESS UNDER REVISED STATUTES.

whole estate, both legal and equitable, is vested in the trustee. The statute also declares in terms, in the 60th section, that the person for whose benefit the trust is created shall take no estate or interest in the land; but may enforce the performance of the trust in equity. The cestui que trust, therefore, has no right to charge the trust property, even for necessary repairs thereon, without the authority of the trustee. This doctrine has been repeatedly reaffirmed. (Noyes v. Blakeman, 2 Seld. 567. Belmont v. O'Brien, 2 Kern. 394.) In Noyes v. Blakeman, (supra,) the case was this: "In October, 1842, the defendant Henry Blakeman and Ann Maria Blakeman, his wife, united in a conveyance of certain lands, (the fee of which was in Mrs. Blakeman as sole heir of her late father,) to Henry F. Belden, in trust: First, to pay over of the rents and profits, the interest upon the mortgages and other incumbrances; the necessary taxes and assessments; the necessary expenses incurred in the needful repairs and insurance of the buildings on said premises; and to pay the remainder thereof to the said Ann Maria, upon her own separate receipt, notwithstanding her coverture, to the intent and purpose that the same, or any part thereof, might not be at the disposal of, or subject to the control, debts, liabilities or engagements of the said Henry Blakeman, or of any future husband she might have, but at her own sole and separate use and disposal. Secondly, upon her decease, during coverture, to apply and dispose of the income, as she should by will appoint, and in default of such appointment, to apply said income to the maintenance and education of her children, if any survived her, and if not, to pay the same to Henry Blakeman for life; with power to devise said lands by will, and to appoint a new trustee or trustees as often as a vacancy should occur." Under this settlement it was held that the trustee, during the life of the beneficiary, had the whole legal and equitable estate in the lands, subject only to the execution of the trust; and that the married woman for whose benefit the trust was created, had no estate or interest in the lands or in the future income, upon which she could create a lien or charge, for the expense of protecting the trust estate, or for any other purpose. In the same case it was held that a married woman could not incur an obligation, binding her personally, even for the expense of protecting property held by a trustee for her use.

It would seem that in a trust created since the revised statutes, a clause against anticipation was not necessary, to insure the protec

tion of the interest of a married woman. It is however advisable, that the estate should be conveyed in trust to a trustee, in conformity to law; and not be left in such a manner that the wife would be compelled to seek the aid of a court of equity to convert her husband into a trustee for her benefit. The property of a married woman held in trust since the revised statutes, is more effectually guarded for her benefit, against the importunities of her husband, than that which she derives under the acts of 1849 and 1860. In the latter cases, she has the same right of disposition as an unmarried woman, and has not the friendly counsel of a trustee to guard her interests from abuse.

The foregoing cases relate to trusts created in real estate. The revised statutes have not attempted to define the objects for which express trusts of personal estate may be created; as they have done in relation to trusts in real estate. Such trusts therefore may be created for any purposes which are not illegal. Indeed it would be very difficult, says the chancellor, if not impossible, in many cases, to create and preserve future and contingent interests in personal property without the intervention of a trustee; although such trustees would not be necessary, under the provisions of the revised statutes, to create and preserve such future and contingent interests in lands, or other real estate. (Gott v. Cook, 7 Paige, 534. Kane v. Gott, 24 Wend. 661, per Cowen, J. Day v. Roth, 4 Smith, 448. Willard's Eq. Jur. 423.)

Most of the cases which are reported in this state arose under marriage settlements executed previous to the revised statutes, and were decided according to the principles then in force. The law in relation to trusts and powers underwent great changes when the statutes were revised in 1830. Many of the trusts usually inserted in marriage settlements in England, would now be invalid if introduced into such articles, in this state, at the present day. Many others are rendered useless and unnecessary by our existing laws; and others are inapplicable to our law of tenures, converting estates tail into estates in fee simple.

In framing articles of marriage settlement regard must be had to the existing state of our law relative to trusts and powers. The more simple they can be drawn, the less likely will they be to lead to litigation. The tendency to preserve estates for distant and remote generations is severely checked by the policy of our laws. They should allow the receipt of the wife of the income to be a good

discharge to the trustee, and should provide for her ultimate disposition of the property at her death, by a will, or an instrument in the nature of a will.

It cannot be expected in a brief chapter on this interesting subject, that a a full discussion can be had of all that appertains to marriage settlements. If free from fraud, they will be upheld against the claims of the creditors of the husband. Equity affords its aid to execute covenants contained in them in favor of any person within the influence of the marriage consideration. The husband and wife and their issue fall within this influence.

The general division of this class of agreements is into such as are made before marriage and in contemplation of that relation, and such as are made afterwards. The first are sometimes called antenuptial, and the last post-nuptial, agreements. We shall, in the further consideration of this subject, subjoin some remarks on each of these kinds of agreements, and notice some of the incidental and collateral principles which usually attend them.

SECTION II.

Of Ante-nuptial Agreements and Settlements made before marriage. The general rule with respect to a nuptial contract is that rights dependent on it are governed by the lex loci contractus. (Decouche v. Savetier, 3 John. Ch. 190.) Our courts have occasionally had to investigate the foreign law and apply it to the transactions of the parties. These cases are not of frequent occurrence. We shall invite the attention of the reader to only a few of them. In the case of Le Breton v. Miles, decided in the court of chancery of New York, in 1840, (8 Paige, 261,) the subject was very fully considered by the chancellor. In that case, two natives of France entered into an ante-nuptial contract in New York relative to their future interests in property which they had at the time of the marriage, or which they should acquire during the coverture, which contract was made in reference to the law of France, and to an intended residence in that country, and was by its terms to be afterwards drawn up in the due form of a marriage contract according to the French law, but the parties after their marriage continued to reside in this state. It was held notwithstanding, that the rights of the parties under such contract must be governed by the laws of France which were in force at the time of the commencement of the marriage.