John G. Johnson, James P. Fogarty, and | and absolute owner of the property, and exerDaniel C. Donoghue, all of Philadelphia, for appellant. C. J. Hepburn, of Philadelphia, and J. Frank E. Hause, of West Chester, for appellees.

cised complete dominion over it; and the trustee, who was the wife's mother, and the brothers and niece of the wife all participated with the wife in a scheme whereby the husband would be defrauded of his marital

rights, and the deed was executed by the wife without his knowledge, consent, or approval; his first knowledge thereof being obtained after her death.

the deed, she parted with the legal title and the physical possession of the entire corpus of the trust fund and thereafter exercised no dominion or control whatever over the trust estate other than as specifically provided in the deed itself.

MESTREZAT, J. This is a bill in equity filed by a surviving husband to have declared null and void as to him a voluntary deed of trust of personal property made by his wife, and for a decree that the property emThe two brothers and the niece deny, in braced in the deed continued to be her prop- their answers and their testimony, the avererty, and at her death formed part of the ments as to the alleged collusion in a frauduassets of her estate. The defendants in the lent scheme. No evidence of it was producbill are a substituted trustee under the deed, ed at the trial, and hence it is eliminated the administrator of the original trustee, and from the case. All the defendants deny the the persons named as beneficiaries in the averment that after delivery of the deed the deed. The case was heard on bill, answers, settlor exercised absolute dominion over the replication, and proof by a referee, who rec- property, and aver on the contrary that, imommended the dismissal of the bill. Ex-mediately upon the execution and delivery of ceptions were filed by the plaintiff to the referee's report which were overruled by the court, and a final decree entered dismissing the bill. The plaintiff has taken this appeal. The deed of trust is dated July 16, 1909, and names as trustee the mother of the settlor, with a provision for the substitution of the Girard Trust Company in case of her death, unless the settlor should appoint another successor. It conveys a part of the settlor's separate personal estate to the trustee in trust to collect the income and pay it to the settlor for life, and after her death to pay an annuity to her husband so long as he remains unmarried, an annuity to a niece, the balance of the income to the trustee herself, and after her death the balance of the income equally to two brothers of the settlor, on their death to their issue, and a part to charity, and if no minor issue of the brothers shall survive them, then the entire estate to charity.

From the report of the learned referee it appears that the plaintiff and Annie Windolph, the settlor in the trust deed, were married in 1903, and resided together continuously and amicably until her death on September 28, 1911. Elizabeth Gravell, the mother of the wife, and the trustee named in the deed, was 78 years old at the date of the She is deed, and died September 3, 1911. described by one of the witnesses as "a very shrewd, able, and capable business woman." She duly accepted the trust. The referee found that the securities and other personal property enumerated in the schedule were part of the separate estate of Annie Windolph, and at the time of the execution of The deed gives the trustee power to change the deed and as part and parcel of the transinvestments, but not to invest in other than action were absolutely and in good faith legal securities except during the life of the transferred and delivered by her to the trussettlor without her consent in writing, and tee for the uses and purposes declared in the relieves the trustee of liability from loss on trust deed; that the deed and the transfer investments thus made. The trustee's com- and delivery of the securities under it to pensation is fixed at 3 per cent. The set- the trustee were not made by the settlor in tlor reserved the right at any time during contemplation of death, nor was it intended her life, in her discretion, to rescind, revoke, or annul the instrument and the trust in whole or in part, and to change or amend its terms and provisions, which action should be evidenced by an instrument in writing.

The bill avers that the deed was executed and delivered, not in good faith, but with the intent, purpose, and object of defrauding the husband, in case he should survive his wife, of his marital rights in the personal property conveyed; that it was testamentary in character and did not constitute a valid gift; that, therefore, the personal property included in the deed formed part of the estate of the wife at the time of her death and should be turned over to her personal representative; that after the execution and delivery of the deed the wife acted as the sole

by her to take effect after her death, and that it was intended by her to take effect and become absolute on the instant of delivery. He further found:

"There was no evidence before the referee that would justify a finding that the deed of trust in this case was gotten up as a mere subterfuge to permit Annie Windolph in her lifetime to possess and control her estate and at the same time to be free of the post mortem claims of her husband. She fully intended to and actually did assign and deliver to the trustee the property in question for the purposes set forth in the deed and under the advice of counsel she endeavored to effectuate her intention by fully complying with the requirements of law."

In conclusion the referee held that the deed of trust is valid, and that the trustee holds title to the securities and other property embraced within the trust for the purpose

of the trust, and not subject to any claim of [ The indispensable foundation for any limthe plaintiff as the surviving husband of itation on his control is a fraudulent intent Annie Windolph. The findings of the referee to defeat his wife's statutory rights as widow. were approved by the learned court below. Young's Est., 202 Pa. 431, 51 Atl. 1036. If The plaintiff, who is the appellant, con- the gift is absolute and accompanied by a tends: (a) That the deed of trust is void as transfer of possession with intent to divest to him because it was in fraud of his marital the donor of his ownership, although the rights; (b) that it is testamentary; and (c) obvious effect is to defeat the wife's or chilthat the evidence established that the instru- dren's succession to the property at the donment operated as a mere nominal transfer of or's death, it is not fraudulent, and therefore the personal property embraced therein, and invalid. did not constitute a perfected gift inter vivos valid and binding upon him.

We have examined with care the testimony in the case, and are not convinced that the learned referee is in error as to his findings of facts. The principal testimony as to the purpose of the settlor in declaring the trust is that of the two attorneys whom she consulted in regard to the matter. They both testify at length as to what occurred at the several interviews between them and their client, and, if believed, there can be no reasonable doubt that the deed was executed by her, not in contemplation of death, nor intended to take effect after her death, but to take effect immediately on its exection and for the uses and purposes named in it. The deed was delivered and transfer of the possession of the entire trust estate was made to the trustee. She, or her agents, made the investments and collected, the income with the exception of three interest payments on a mortgage made by check to Mrs. Windolph. The referee distinctly finds that there was no undue or dominating influence exercised by Mrs. Windolph or any one else over the trustee, who consulted her counsel and agents as well as her daughter in relation to the investments.

"In our law," says Sharswood, J., in Pringle v. Pringle, supra, "no such gift otherwise wife or children. They have no legal right to valid can be impeached as a fraud on a man's any part of his goods, and therefore no fraud can be predicated of any act of the husband or parent to deprive them of the succession."

In Lines v. Lines, 142 Pa. 149, 21 Atl. 809, 24 Am. St. Rep. 487, we held that the "good faith" required of the donor or settlor in making a valid disposition of his property during life does not refer to the purpose to affect his wife, but to the intent to divest himself of the ownership of the property. It is therefore apparent that the fraudulent intent which will defeat a gift inter vivos cannot be predicated of the husband's intent to deprive the wife of her distributive share in his estate as widow.

Our

[2] We think there can be no doubt that, under the present legislation in this state, a wife has the same power of disposal of her personal estate during coverture that her husband has of his personal property, and that she can create a valid trust of her separate personal estate without the joinder or consent of her husband. Of course at common law this could not be done, as her estate, on the marriage, went to her husband. legislation, however, has changed her status [1] We do not agree with the appellant as to her separate property, and she now that the deed was a fraud upon his marital has the same right and power as an unmarrights. It is the settled law in this state, ried person to acquire, own, control, sell, or as was the common law, that during his life otherwise dispose of her property, and may a man may dispose of his personal estate, by exercise the right and power in the same voluntary gift or otherwise, as he pleases, manner and to the same extent as an unmarand it is not a fraud upon the rights of his ried person. The only exceptions are that she widow or children. Ellmaker v. Ellmaker, may not become an accommodation indors4 Watts, 89; Pringle v. Pringle, 59 Pa. 281; er, maker, guarantor, or surety for another, Dickerson's App., 115 Pa. 198, 8 Atl. 64, 2 Am. or mortgage or convey her real estate withSt. Rep. 547. This power arises from the fact out the joinder of her husband. With these that he is the absolute owner, and hence may exceptions, a married woman occupies the make a gift, declare a trust, or otherwise dis- same relation to her property as an unmarpose of his personal property at his pleasure. ried person, or, as her husband to his property. During his life his wife and children have In other words, saving the disabilities specino vested interest in his personal estate, fied in the statute, her control over, and and hence they cannot complain of any dis-power of disposal of, her separate estate are position he sees fit to make of it. Their right the same as if she were a feme sole. She to his property attaches only at his death. may therefore dispose of her personal estate "It is scarcely necessary to add," says Sterrett, J., in Dickerson's Appeal, supra, "that such gifts, made in good faith as these were, cannot be impeached on the ground that they are a fraud upon the rights of the widow. Nothing is better settled than the power of a husband to dispose of his personal property in good faith, by gift or otherwise, during coverture, free from all post mortem claims thereon by his

widow."

during coverture as she pleases. Her husband has no vested interest in her personal property during her lifetime. If done in good faith and with the intention to divest herself of the ownership, she may sell her personal property, give it away, or make any other disposition of it she desires during her life, and he cannot complain, for the all-sufficient

dispose of the property without his consent. In either case his rights were not affected by his ignorance of the trust during her lifetime. The present case is not a secret voluntary conveyance of her property by a party in contemplation of marriage without the consent of her intended husband, and hence the numerous authorities cited by counsel holding that such disposition of her property is void have no application here. That was de

of the other party and, of course, avoided the transfer of the property as to him. The reason of the rule forbidding such antenuptial transfers is well stated by Lowrie, C. J., in Duncan's Appeal, 43 Pa. 67, 69, where it is said:

reason that he has no interest in the property. She is the owner and has absolute control over it, and hence in disposing of it during life she infringes no property or other right of her husband. He does not sustain the relation of creditor to his wife. If she does not die vested of it, he can never acquire any interest in the property. It is manifest, therefore, that having no right or interest in or to the property as husband, there are no marital rights of which he can be declared to be a fraud upon the marital rights frauded by his wife's disposal of the property during life by gift or otherwise. To hold that a wife cannot declare a trust or make a valid gift inter vivos of her personal property would, in effect, be repealing the statute which frees her from the common-law restrictions and limitations imposed upon her and declares her ownership to be that of a feme sole. In Saake v. Dorner, 167 Pa. 301, 31 Atl. 574, we held that the Married Person's Property Act of June 3, 1887 (P. L. 332), was ample to enable a married woman to create a trust of her separate estate. That act was repealed by the act of June 8, 1893 (P. L. 344), the present law on the subject, which extends and enlarges a married woman's control over her separate estate, and confers upon her the same right and power as an unmarried person to acquire, control, and dispose of her property and to make any contract in the exercise or enjoyment of such right and power, requiring, however, the joinder of the husband in mortgaging or conveying her real estate, and prohibiting her from becoming an accommodation indorser, maker, guarantor, or surety for another.

The wife's motive for declaring the trust in the present case was not to defraud her husband, nor did she resort to the deed for the purpose of defeating his marital rights. She did desire to make a legal disposition of the part of her separate personal estate embraced in the deed, and hence she consulted her counsel with that purpose in view. She was advised that she could dispose of it by a proper declaration of trust, and the deed in question was made in pursuance of that advice. It was duly executed and delivered by her to the trustee, and the property embraced in it was transferred to and taken possession of by the trustee. This, as found by the learned referee, was done in good faith and for the purposes set forth in the convey

ance.

We do not regard as material whether the plaintiff acquired his knowledge of the declaration of the trust before or after the death of his wife. She was the owner of the property, had the absolute control and power of disposal over it, and hence she was not required to consult or notify her husband of her intention to dispose of it. If she had the power of disposal by deed of trust, notice to her husband of her intention to exercise it would have served no purpose so far as he was concerned. It was equally unimportant that he should have notice if she could not

"Common candor forbids that so important a change in his intended wife's circumstances, made without his consent, and equity sternly and in her power over her estate, should be condemns it as a fraud upon his just expectations. This principle of equity has stood the test of experience too long to be open to dispute now. * ** The plaintiff had * * a right to suppose that he was marrying her with all her legal power over her estate, whereas by this arrangement it was secretly slipped trol, just before the marriage was consummated. into the hands of trustees, and out of her conThis is not just or equitable treatment of the husband. A fraud no greater than this would avoid any other contract than that of marriage; contracts that are in fraud of it." but as this cannot be avoided, equity avoids the

The distinction between a voluntary disposition of property in contemplation of marriage and a gift or declaration of trust of personal estate by a husband or wife during coverture is recognized in the decisions. In the recent case of Hall v. Hall, 109 Va. 117, 63 S. E. 420, 21 L. R. A. (N. S.) 533, where it is held that a voluntary deed by a man of his personal estate cannot be set aside by his wife as a fraud upon her rights, the distinction is adverted to, Mr. Justice Whittle saying:

"The fact that the precise question involved in this case has been twice decided by this court renders unnecessary a discussion of the power of the husband to disappoint his widow by divesting himself of title to his personal estate in his lifetime. (Of course, the doctrine is not to be confounded with the principles applicable to the dispositions of property made in contemplation of marriage.)"

[3, 4] The plaintiff further contends that the instrument of July 16, 1909, is not a deed of trust, but is testamentary in its nature. If this be true, it would not, of course, deprive the husband of his interest in the property embraced in the deed, as the wife would die possessed of the property, and hence his statutory interest therein would be unquestionable. It is contended that the instrument bears upon its face evidence that it was not intended to take effect in the lifetime of Annie Windolph. These evidences of its testamentary character, it is claimed, are that the settlor reserved to herself the entire income from the trust property during her life, that the estates of the remaining cestui que trustent were not to take effect in possession

this right is never exercised according to the terms in which it is reserved, as in the case at have no effect on the validity of the trusts or bar, until after the death of the donor, it can the right of the trustee to hold the property."

or enjoyment until after her death, and that there was a power of revocation reserved in the instrument. We think, however, these reasons are not sufficient to avoid the deed as a valid declaration of trust, and to show that it was intended as a disposition of property to Nor do we think the evidence, as claimed by take effect after death. The referee found, on plaintiff, discloses that the instrument was exsufficient evidence, that the deed was deliver- ecuted with testamentary intent. The settlor ed to the trustee at the time of its execution, was distinctly told by her counsel prior to the together with a transfer of the possession execution of the deed that in order to make it of the property, that the settlor parted with effective as a deed of trust, she would have her title to the property at that time and to give up her property and lose all control vested it in the trustee for the purposes spec- over it. She clearly understood that to make ified in the deed, and that she at no time the deed effective she must deliver it and the intended that the deed of trust should be property to the trustee. There is nothing construed as a will, or that it was ex- subsequent to the execution and delivery of ecuted as a subterfuge to enable her to obtain the deed that indicates that this was not done. The evidence which it is claimed the control of her property, and at the same time make it effective to defeat her husband's shows that the settlor continued to exercise marital rights in her estate. The intention her right as owner over the property was of the settlor at the delivery of the deed was carefully examined by the learned referee, to part with the legal title and the reserva- and he found that it did not sustain the plaintion to herself of a life interest, and the en- tiff's contention. Our examination of the evijoyment of the estate until her death did dence has not convinced us that he was not invalidate the trust as to the beneficiaries wrong. We think that the essential requisites named in the deed. Lines v. Lines, 142 Pa. of a valid trust are disclosed in this case, and 149, 21 Atl. 809, 24 Am. St. Rep. 487; Nolan that the instrument of July 16, 1909, was not v. Nolan, 218 Pa. 135, 67 Atl. 52, 12 L. R. A. a will. (N. S.) 369; Wilson v. Anderson, 186 Pa. 531, 40 Atl. 1096, 44 L. R. A. 542; Robertson v. Robertson, 147 Ala. 311, 40 South. 104, 3 L. R. A. (N. S.) 774, 10 Ann. Cas. 1051. In the Wilson Case we said, inter alia (186 Pa. page 539, 40 Atl. 1099, 44 L. R. A. 542):

What has been said disposes of the plaintiff's contention that the evidence established that the deed operated as a mere nominal transfer of the property, and did not constitute a valid and perfected gift inter vivos. In determining this question the learned referee considered, not only the deed, but all the other evidence bearing upon the subject, and his conclusion was adverse to the plaintiff's contention. The findings of the referee were approved by the court below, which said:

"The general rule is that if the intention of the grantor at the time he delivered the deed was to part with the legal title, the trust will be enforced in favor of the beneficiaries, even though their enjoyment of the estate is' post-tiff's poned until the death of their benefactor."

It is equally well settled that a reserved right of revocation is not inconsistent with the creation of a valid trust. Dickerson's App., 115 Pa. 198, 8 Atl. 64, 2 Am. St. Rep. 547; Smith's Est., 144 Pa. 428, 22 Atl. 916, 27 Am. St. Rep. 641; Stone v. Hackett, 78 Mass. (12 Gray) 227. In the latter case it is said: "A power of revocation is perfectly consistent with the creation of a valid trust.

If

"We have carefully gone over the testimony and have noted the exceptions of plaintiff to the same. There appears to be no substantial error in the referee's findings of fact."

These findings are conclusive upon us in the absence of manifest error, of which we are not convinced.

The decree is affirmed.