Carpenter v. Browning

Citations

• 98 Ill. 282
• 1881 Ill. LEXIS 254

Syllabus

<p>1. Will—construed as whether creating an active trust or a nalced one, or mere use. A devise, taking effect before the Married Woman’s act of 1861, for an equal division of all the testator’s estate among his children, except that he devised to a son the portions of his estate, real and personal, which would otherwise have gone to his daughters, naming them, in trust for the sole and separate use of each of the testator’s daughters and their heirs, free from the control of the husbands they then had or might thereafter have, free and clear from any debt or contract of said husbands,—the rents, issues and profits to be paid to his daughters respectively, creates in the sou an active trust, passing the legal-estate and entire possession and control of the lands of the daughleis to him, and by implication requires him to pay the rents, issues and profits to the daughters of the testator.</p> <p>2. Same—construed with reference to the law when it took effect. The state of the law at the time of the execution of a will often affords material assistance in arriving at the intention of. the testator, when it would otherwise be doubtful, and the rights of the parties taking under a will are always to be determined by the law as it existed at the time the will took effect.</p> <p>3. Trust-—whether satisfied or changed by Married Womaii’s act of 1861. Where a testator, by a devise which took effect before the Married Woman’s act of 1861, devised the real and personal estate given by him to a daughter, a married woman, to his son in trust for the sole and separate use of- the daughter and her heirs, free from the control of her husband, and from his debts and contracts, it was held that the Married WomanYact enlarging the property rights of married women, did not have the effect of satisfying the objects and purposes of the trust, so as to warrant a court of equity in directing a conveyance by the trustee to the daughter, but that the trust would still exist as originally c