Green v. Green
90 U.S. 486

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U.S. Supreme Court

Green v. Green, 90 U.S. 23 Wall. 486 486 (1874)

Green v. Green

90 U.S. (23 Wall.) 486

Syllabus

1. Where a husband and wife conveyed lands in trust for the sole and separate use of the wife and for the children of the two parties during the wife's life in absolute property, as if she were a feme sole, and free and clear of

"any right, title, and estate, whether as tenants by the curtesy or otherwise, of her present or any future husband, and from his control and from any liability for his debts, and upon trust and to hold and dispose of and convey the said premises in such manner and to such uses, interest, and purposes as the wife may from time to time direct by any last will and testament or other testamentary writing of what form soever which she, the wife, notwithstanding her present or any future coverture, shall and may direct, limit. and appoint, and in the absence of any such direction, limitation, or appointment, or subject thereto, or remainder after her death, to her heirs-at-law of the wife,"

the Rule in Shelley's Case does not apply. A fee simple is not created in the wife, and a deed by her, her husband, and her trustee conveying or pledging the property is void and may be set aside by herself and her children. She could pass title only by a testamentary writing of some form.

Thomas Green, by deed dated January 15th, 1867, conveyed certain real estate in Georgetown, D.C., to James Green, in fee, in trust. The trust was in these words:

"For the sole and separate use of Catharine Green (wife of the said Thomas) and for the children of said Thomas Green and Catharine Green, during her life, in absolute right and property, as if she was a feme sole, and free and clear of any right, title, and estate, whether as tenants by the curtesy or otherwise, of her present or any future husband, and from his control and from any liability for his debts, and upon trust and to hold and dispose of and convey the said premises in such manner and to such uses, interest, and purposes as she, the said Catharine Green, may from time to time direct by any last will and testament, or other testamentary writing of what form soever which she, the said Catharine Green, notwithstanding her present or any future coverture, shall and may direct, limit, and appoint, and in the absence of any such direction, limitation, or appointment, or subject thereto, or remainder after her death, to her heirs-at-law of the said Catharine Green. "

Page 90 U. S. 487

On the 21st of November, 1868, James Green, as trustee, and Thomas Green and Catharine Green united in a deed to one Ward whereby they conveyed to him in fee simple the premises described in the deed first set forth, in trust to secure the payment of a note for $6000, payable six months from date, with interest, and bearing even date with the deed, payable to the order of Lewis Wells. At this time, Mr. and Mrs. Thomas Green had two daughters, both under age.

This note having matured and continuing unpaid, Ward, at the request of Wells, advertised the premises for sale, and was proceeding to a sale thereof under the power contained in the deed to Ward.

Hereupon Mrs. Green and the two infant daughters by their guardian filed a bill in the court below -- the bill in this case -- against the trustee, the husband, and Ward, alleging that the deed to Ward was improvidently executed; that Mrs. Green had no power to appoint or limit the fee simple of the premises therein described by deed, but only by a last will and testament or a testamentary writing; that the deed to Ward was accordingly void; that the powers contained in it were unauthorized by the deed of trust to James Green for their benefit; that the title obtained under the deed to Ward would impair the equitable title of the said Mrs. Green and of her children under the deed for her and their benefit, and asking that the deed to Ward might be set aside and an injunction issue restraining Ward from selling under the alleged authority of the deed to him.

The trustee and the husband answered admitting the facts as alleged.

Ward answered denying that the deed was void. His position was that under the Rule in Shelley's case, the wife became, by the conveyance in trust to James Green, the owner of the property in fee simple; that the estate granted to her for life, and the remainder to her heirs-at-law, being both equitable estates, united in her as an estate of inheritance, and without reference to the exercise of the power of appointment; that, being the owner of the fee, her deed to Ward carried the full title to him.

Page 90 U. S. 488

The court below decreed a perpetual injunction and that the defendant Ward be absolutely enjoined and prohibited from selling, or attempting to sell the property described in the trust deed except the life interest of Mrs. Green in one-third thereof, and that the defendants below pay the costs of suit.

From this decree the defendants appealed to this Court.

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