Jaques v. Trustees of the Methodist Episcopal Church

Majority

p. 429

John D. Jaques and Robert Jaques, appellants, against The Trustees of the Methodist Episcopal Church in New-York, and others, respondents.

Headnote

An appeal from a macause opens for ⅛® coosid-courtOT1aH prior or interlocutory ¡Y any wy connected 0f the finaTde-

cree ⅛ that made materia? facts j,” “ canse have ed, so as to en-a?lfethe Court understand and ™ ⅛6 Talc? ° ⅛

_ A spccttohersejp ay‘e r®*tar‘^|! ¡1 ’¾ r?Surt *4 S“?y;ofcas ¿ may dispose™! sent or coucur-™‘“e ofunl^ she”is specially ”»tt»ined fe the instrument under which m”[?ires tateSCpa'aees

And though a particular mode of disposition be specifically pointed out in the instrument, or deed of settlement, it will not prmdudc her adopting ;mv other mode of disposition, unless there are negate words restraining her of diviomiuii, ( m the \ mode

Theref m , if di<» en'ei ⅝ into any agreement, clearly indicating her intention to affect by it her separate property . a court of equity. if there he no fraud, or unfair advantage taken of her, will apply her separate properU t<- - itisi\ Mich engagement. And she mnv gt\e it to her husband as well as any other person, if her disposition of it be free, and not the result, of flattery, or force, or improper treatment. As where the wife agree I to defray the expenses of the family establishment, the husband is not only not accountable for the rnonovs received by him of his wife, and expended for that purpose, but is to be allowed for ail advance^ by him for that object, and for the repairs of her estate.

.When.- a deed of marriage i-ettlement was duly executed ivy the parties, and laid on the table, and the wife as 11 Aui <¡‘u' trust, took it up and kept in her possession until her death, it was held, under the cir-eumsUinces, to be a good and valid delivery of the deed.

APPEAL from the Court of Chancery. The bill filed by the respondents, on the 10th of March, 1813, against #the appellants and Henry Cruger, was for an account of the real and personal estate of Mary Jaques, deceased, late the wife of the appellant John D. Jaques, and who was formerly the wife of William, Alexander, deceased. It stated, that Mary Jaques, at the time of her intermarriage with, the defendant, J. D. Jaques, was seised and possessed of a large real and personal estate, particularly mentioned in the bill; that, in contemplation of the marriage about to take place between her and /. I). Jaques, a deed of marriage settlement was made and entered into, between Mary, of the first part, John D. Jaques, of the second part, and II. Cruger, of the third part, dated the 25th of September, 1805, by which the said Mary conveyed all her estate, real and personal, to the defendant, Cruger, to the tire of the said Mary, until the marriage should take place, and from and after the marriage to the use of such persons, and for such estates, as she, with the concurrence of her intended husband, should, by deed, attested by two witnesses, or by her last will and testament, limit and appoint; and, until such appointment, to the use of II. Cruger and his heirs, during the life of the said Mary, to enable her to take the profits thereof, free from the control of her husband, and at her absolute dis-posai; that, immediately after the execution of the deed, the marriage took place between the parties. The bill alleged that., after the intermarriage, J. D. Jaques, during the lifetime of his wife, by artful contrivances, possessed himself of her ¡personal estate, and of the rents and profits of her real estate, and applied the same to. his own use, changing the securities for money, and taking new securities in his own name ; and . * , ° , , , . .n , . appropriated the money belonging to his wife, m purchasing real estate, the titles to which he took in his own name, and claimed them as his own; that, among the securities so held

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by the said Mary, was a bond of one Heyl, for a large sum, and a mortgage of two leasehold, and one freehold estate ; which securities J. I). Jaques having got into his possession, proceeded, in his own name, and procured a decree for the sale of the mortgaged premises; that he sold one of the leasehold estates to a third person, for 1,980 dollars, and purchased in the other for 1,510 dollars, and conveyed it to his brother, * Robert Jaques, the defendant; and that he also purchased in the freehold estate, and took a deed in his own name; which two last estates the plaintiffs claimed as part of the estate of Mary Jaques, having been paid for out of her personal estate ; and that, before the sale of the mortgaged premises, the defendant, J. D. Jaques, received the rents and profits.

That Mary Jaques, intending to execute the power reserved to her by the deed of settlement, did, with the concurrence of her husband, by deed, dated the 12th of September, 1812, convey all her real estate to the defendant, Robert Jaques, in fee, upon trust, that, after her decease, he should sell the same, and out of the proceeds, after paying the expenses, should dispose of the surplus, as follows : to wit, one third to the trustees of the Methodist Episcopal church; one third to the children of Thomas Brown, and his wife, in equal shares ; and the remaining third to the defendant, J. D. Jaques. That after the execution of that deed, Mary Jaques, on the 25th of September, 1812, made her last will and testament, by which she gave several specific legacies to the plaintiffs, to the children of Thomas Brown and his wife, to Jane Brown and others ; and all the residue of her estate she gave, the one third thereof to the plaintiffs, the trustees of the Methodist Episcopal church ; one third thereof to the plaintiffs, the children of the said Thomas Brown and wife ; and one third to the defendant, J. I). Jaques; and appointed Paul Hicks and Thomas Brown, plaintiffs, and John I). Jaques, defendant, executors of her will. That after the will was duly proved, and the specific legacies paid and delivered, the plaintiffs, Hicks and Brown, executors, applied to J. D. Jaques, the co-executor, who had the custody of the papers, securities, and personal effects of the testatrix, to exhibit the same to them, in order that an inventory might be duly made ; but the defendant, J. D. Jaques, refused to do so, unless the plaintiffs would first agree to pay him a demand of about 12,000 dollars, which he said he had paid for maintaining the said Mary Jacques, her horses and carriages, &c.

The bill set forth the particulars of the residuary personal estate of the testatrix, as far as it had come to the knowledge #of the plaintiffs; and prayed an account of the same, and a discovery of what moneys, or securities for money, belonging to Mary Jaques at the time of her marriage, had come to the hands of the defendant, J. D. Jaques, and how he had disposed of the same; and also of the rents and profits of the real estate received by him; and that the title-deeds might be brought into

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court; that he might be compelled to surrender the trust of the real estate, or give security for the due performance thereof; that a receiver of the estates may be appointed, and the defendants enjoined from disposing of any part thereof; and for general relief, &c.

The defendants, in their answers, admitted that Mary Jaques, before, and at the time of her intermarriage with J. D. Jaques, was seised of certain real estates, which they mentioned ; and was possessed of personal property, consisting of slaves, household furniture, horses, carriages, moneys, securities for money, Ac., amounting to about twenty-two thousand dollars. That the deed of settlement, of the 25th of September, 1805, was signed and sealed, but that it was never delivered, and, therefore, they denied its validity. They admitted the mortgage of Jtnjl, and a judgment against him for 2,772 dollars; and that the mortgage and judgment were put into the hands of J. D. Jaques, by Mary Jaques, to collect; and that he was let into the receipt of the rents and profits of the mortgaged premises that J. D. Jaques slated, and settled an account with Heyl, the balance of which, on the 1st of July, 1806, was 8,026 dollars and 97 cents. The defendants, also, admitted the sale of the mortgaged premises, and the purchase and conveyances, as stated in the bill, setting forth the particulars of the transaction ; that Robert Jaques had notice, at the time J. D. Jaques con-veved to him the leasehold lot in Murray street, of the manner in which J. D. Jacques obtained title to the leasehold premises under the mortgage; and that the lease of the lot in Murray street was renewed, in 1812, for 42 years, and assigned to Robert Jaques ; and that the mortgaged premises purchased in by J. 1). Jaques, at the master’s sale, were paid for by deducting so much from the sum reported due by the master; and that J. 1), * Jaques informed Mary, his wife, that he had received the said money from Heyl, or property equivalent, with which she appeared satisfied. That /. D. Jaques never paid, or accounted to her for the money or property so received and obtained by him. The defendant, J. D. Jaques, admitted that he received 808 dollars and 71 cents, for rents and profits of the mortgaged premises, before the sale, which he had not paid over. That his marriage was kept secret 11 months after it took place, during which time his wife transacted her business by her former name, Mary Alexander; and he set forth further, the particulars of his account of expenses for maintaining her, her horses, &c., during her life, and for family expenses, &e.

The cause was brought to a hearing on the pleadings and proofs; and on the 27th of June, 1815, the chancellor made a decretal order, settling the principles on which an account was to be taken, and an order of reference was made to a master to take and state the account, according to the directions therein g>ven. Tne order or decree was as follows:

That the deed in the pleadings mentioned, bearing date the

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25th of September, 1805, made by and between Mary, late wife of John D. Jaques, of the first part, the said John D. Jaques, of the second part, and Henry Cruger, of the third part, teas July crc-cuteci, and is a valid instrument in law, far the uses and purposes then in mentioned; and under and by virtue of which deed, the estates real and personal of the said Mary were secured to her sole and separate use, according to the tenor of the said deed : and the real and personal estates of right belong, and are distributable according to the last will and testament of the said Mary, late the wife of the said John D. Jacques, made under the power in the aforesaid deed for that purpose contained, and according to the deed in the pleadings also mentioned, made by the said John I). Jaques, and the said Mary, lately his wife, of the one part, and the said Robert Jaques, of the other part, bearing date the 12th of Si jit ember, in the year one thousand eight hundred and twelve. And it was further decreed, that the freehold estate, situate adjoining IVamn strut, in the city of Rew-York. mentioned in the pleadings in this cause, the title to which stands in the name of the *said John D. Jaqhes, which title he acquired from a master in chancery, in consequence of a sale thereof, under a decretal order of this court, and also the leasehold (-state, situate adjoining Murray strut, in the city of Ri w- York, likewise mentioned in the pleadings in this cause, the title to which stands in the name of the defendant Robert Jaquís, and which title he acquired from the said John I). Jaques, by assignment, as in the pleadings mentioned respectively. of right belong to the said Mary, late the wife of the said John D. Jaques, and constitute part of her estate, secured to her separate use, by the said deed of Ihe 25th of September, 1805 : and the said last mentioned estates respectively of right belong, and are distributable, according to the aforesaid deed, to the said Robert Jaques, of the twelfth of Septi mht r, one thousand eight hundred and twelve, and the last will and testament of the said Mary. And for the purpose of such distribution of the aforesaid estates respectively among the complainants, the trustees of the Methodist Episcopal church, in the city of New-York, and the complainants Hannah Maria Brown, Mary Alexander Brown, Evelina Truxton Brown, John Conway Brown, and Washington Brown, the infants, and the defendant John D. Jaques, according to their respective rights, under the said deed to the said Robert Jaques, of the twelfth of September, one thousand eight hundred and twelve, and the said last will and testament of the said Mary, late the wife of the said John D. Jacques. This court doth further order, adjudge and decree, that the said premises in the pleadings mentioned, situate at the corner of Broadway and Reed street, and the premises in the pleadings mentioned, situated adjoining Broadway and Crosby street; and also the freehold estate, situate adjoining Warren street, the title whereof stands in the name of the said John D. Jaques; also the said leasehold estate, situate adjoining Murray

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street, standing in the name of the said Robert Jaques, be sold at public auction, under the direction of a master in chancery, he giving at least six weeks previous notice of the time and place of such sale, in one or more of the public newspapers printed in the city of Neiv-YorTc; that all proper parties join in competent deeds and conveyances to the purchasers #thereof. and that he deposit the moneys arising from such sales with the assistant register, to abide the further order of the court relating thereto. And it is further ordered, adjudged, and decreed, that the said John D. Jaques shall account with the complainants for the rents and profits of the said real estates respectively, that is to say, for the said real estate situate at the corner of jBroadway and Reed street, from the decease of the said Mary, his late wife; and for the said real estate adjoining Broadway and Crosby street, from the time of the intermarriage between the said John D. Jaques, and the said Mary, his late wife ; and for the said real estate adjoining Warren street, from the first day of March, 1810, the time when he took a title to the same from a master in chancery, as mentioned in the pleadings in this cause; and that the said John D. Jaques ánd Robert Jaques shall likewise respectively account for the rents and profits of the said leasehold estate, situate adjoining Murray street, standing in the name of the defendant, Robert Jaques, from the day last mentioned, according to the time they shall respectively have been in possession, or the receipt of the rents thereof; in taking which account of rents and profits, the said John D. Jaques and Robert Jaques, respectively, shall be charged with what they have received, or ought to have been received by them respectively, or may have been lost by reason of misconduct, or wilful default in relation thereto ; and that in relation to the said freehold and leasehold estates, adjoining Warren street and Murray street, in taking the accounts of the rents and profits thereof, the master shall make just allowances to the said John D. Jaques and Robert Jaques, respectively, for all improvements by them made thereon, which are of a nature to be permanently useful, or increase the value thereof. And it is further ordered, adjudged and decreed, that the defendant, John D. Jaques, shall account with the complainants for all the personal estate of the said Mary his late wife, w'hich belonged to her at the time of their intermarriage, and which has come to his hands since the said marriage; and that in taking the said account of the personal estate, the said John D. Jaques shall only be charged with the principal sums of money he may have received, *and interest from her decease, and not with sums received as interest, or dividends arising from the said Mary’s personal estate during her life; and the said John D. Jaques shall, on taking this account, have all just allowances for any sums expended out of the said principal moneys, and rents, and profits, in improvements of, and for repairs and taxes on the real estates of the said Mary, which she had at the-time

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of the intermarriage between her and the said John D. Jaques, or otherwise expended for her in the purchase of any goods and chattels by her special direction in each particular case, and apparently for her benefit; but that the said John 1). Jaques shall not have any allowance for expenditures in maintenance of the said Mary, her family, or equipage, during the time she was the wife of the said John D. Jaques. And it is further ordered, adjudged and decreed, that it be referred to a master in chancery, to take the accounts as before directed, and to report thereon to the court with all convenient speed, and that the master have power to examine each or either party upon interrogatories, or otherwise, under oath, and to compel the production of all books and papers by either party, which may be necessary in taking the accounts, and that the question of costs, and all further directions, be reserved till the coming in of the master’s report.”

It being, afterwards, discovered, that some of the property advertised for sale, by the master, pursuant to the decretal order above-mentioned, had been mortgaged, further directions were given to the master, by an order of the 5th of October, 1815, In pursuance of these orders, the master (F. Ball) proceeded in taking the accounts, and continued until March, 1816, when he died, without having completed them. On the 29th of April, 1816, an order was made, by consent, directing the proceedings to be continued before another master, to perfect the conveyances, &c., and to complete the account; pursuant to this order, the master, (F. Arden,) on the 10th of April, 1817, made his report, to which the respondent took exceptions, and on the rehearing as to the exceptions, presented a petition, on which the chancellor, on the 29th of September, 1817, made an order, giving directions as to the disposition of some of the property, #in the hands of the assistant register, and the master. The exceptions to the master’s report were eighteen in number; the chancellor, after argument, made a decree, the 12th of November, 1817, in which some of the exceptions were allowed, and the others disallowed: ( 3 Johns. Ch. Rep. 77 —120.) and the report was ordered to be re-committed to the master, for the purpose of being amended in conformity to the decretal order so made. On the 16th of January, 1818, the master made his report, pursuant to the said decretal order. By this report, there was found due from the appellant, John D. Jaques, individually, to the respondents, on the 10th of April, 1817, $4,493 and 47 cents, besides the sum of $1,745 and 19 cents due J. D. J. and R. J., according to the master’s former report, not excepted to in that respect. On the 15th of June, 1818, the cause came on to be heard on the master’s report and further report, and the equity reserved, and the question of costs; and the chancellor, on the same day, made his final decree, by which the aforesaid sums, amounting to $6,238 and 66 cents, with interest thereon, from the 10th of

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April, 1811, were directed to be paid to .the respondents, together with their shares of other moneys which had arisen from the rents of property adjoining Broadway and Crosby street, in the city of New- York, and the sale of some of the irersonal estate of Mary Jaqués, and some of her outstanding debts which had been collected and paid into court pending the suit; and further, that the appellant, J. D. J., should pay the costs of the suit. From this decree the appellants appealed to this court. The respondents, also, filed a cross appeal. The counsel for the appellants moved to bring on the hearing of the appeal, when

S. Jones, jun., for the respondents,

objected to the appellants being heard in the cause, as it appeared from their record, that they intended to bring in review all the several interlocutory orders and decrees made in the progress of the cause, and more than fifteen days before the appeal was filed, and to which the respondents had objected in their answer to the appellants’ petition of appeal. The statute concerning this court, (i N. R. L. 132. sect. 9. 2 Rev. Stat. 166.) declares, *that all appeals from the Court of Chancery, except those from final decrees, and all appeals from the Court of Probates, shall be made within fifteen days after making the sentence, judgment, decree or order appealed from ; and that appeals from,final decrees shall be made within five years, &c. The question is, What is a final decree in a cause, within the meaning of the statute ? There can be but one final decree, and is not that the last decree made in the cause ? If the principle on which the appellants proceed is to prevail, then every interlocutory order made in a cause may be appealed from, within five years after the final or last decree is pronounced, although the statute has limited appeals from interlocutory orders to fifteen days. Great inconvenience and delay must result from such a construction of the statute. A decree to account, for example, is an interlocutory, not a final decree. (2 Mad. Ch. 347. 2 Atk. 385.) If the manner in which the account is directed to be taken be improper, or erroneous, this court cannot correct it. According to the rule of the English chancery, there must be a final decree on the report to make it equal to a judgment. (2 Mad. Ch. 355, 356. 10 Vesey, 39—41. Travis v. Waters, 10 Johns. Rep. 500 —510. 3 Bro. C. C. 643. n. 5 Bro. P. C. 395.) In the present case there was an order of reference ; a report by the master; exceptions to that report by both parties, some of which were allowed, and others overruled; a new reference to the master ; an amended report; an order confirming the report, reserving the equity ; and, finally, the cause was heard on the 15th of June, 1818, on the equity reserved, and the costs, and a final decree made ; and an appeal filed several months thereafter. The order of the 29th of April, 1816, was made by consent; an appeal cannot, therefore, be made from

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it. (7 Bro. P. C. 235. Colies P. C. 287. 7 Viner. Abr, 398. pi. 13. 2 Equ. Cas. Abr, 488. 3 Dow’s P. C. 133.) , ■

T. A. Emmet, and C. Baldwin, contra.

The decretal order of the 27th of June, 1815, established the rights of the parties, and settled every principle in the cause, except the question of costs. The appellants have acted on that belief, *and the last decree does not affect them, except as to the costs. The order or decree which determines the merits, or principles of the cause, must be the final decree: There may be, in this respect, several final decrees in a cause, as where there are distinct matters submitted to the chancellor, his decree settling each matter is a final decree. A contrary doctrine would abridge the right of appeal. An appeal from a final decree authorizes an examination into all previous interlocutory orders which affect the merits of that decree. In Le Guen v. Gov-erneur and Kemble, ( 1 Johns. Cas. 498 .) Radcliff, 3., says, that “ by an appeal from any interlocutory or final decree, all the proceedings in the cause anterior to the decree are necessary to be presented to this court, and proper for its determination. It may frequently become indispensable to reverse, alter, or modify the previous proceedings, in order to make them consistent with the decree to be here pronounced ; all antecedent matter is, therefore, necessarily before the court, and subject to its control.” (De Labigarre v. Bush, 2 Johns. Rep. 490 .) In Travis v. Waters, the decree made on the master’s report was considered the final decree, though the cause was after-wards heard on the question of costs. (1 Harris Ch. Pr. 8 ed. 420. Gilb. Equ. Rep. 151. Select Cases in Ch. 24. 2 Equ. Abr. 81. 2 Johns. Cas. 438 .)

Harison, in reply,

observed, that this was a question of great importance as regarded the administration of justice. He traced the history of the right of appeal in England, and cited Smith v. Clay, (Ambler, 645.) and 6 Bro. P. C. 395. This court, in Travis v. Waters, ( 12 Johns. Rep. 508 .) settled what was a final decree within the meaning of the statute. A decree is final when it settles the rights of the parties upon the whole merits. An order or decree that does not affect the merits of the controversy between the parties, ought not to be the subject of appeal. If the period of 15 days, limited by the act, is too short, it is for the legislature to enlarge it. The sense of the legislature as to what is a final decree, is evident from the directions given in the sixth section of the act relative to the Court of Chancery. (1 N. R. L. 488. 2 Rev. Stat. 167.) The decree need not be enrolled, but is *to be annexed by the register to the pleadings, and other proceedings in the cause, with the reports and decretal orders made therein, &e.

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Spencer, Ch. J. The fined decree in this cause was pronounced the 15th of June, 1818. After the decree; of June 27th, 1815, facts were to be ascertained, and the master made a further report in January, 1818, and this was necessary before a final decree could be made. In Travis v. Waters, ( 12 Johns. Rep. 500 —508.) this court considered a decree as final, which was made when all the material facts in a cause had been as-eertained, so as to enable the court to understand and decide upon the merits. An appeal from a final decree opens for consideration all prior or interlocutory orders or decrees any way connected with the merits of the final decree. All these prior orders were open to be reviewed, modified or altered by the chancellor, until he pronounced his final decree in the cause. Accordingly, the decretal order of June, 1815. was modified by that of October, 1815. The final decree of June, 1818, is incorporated with the prior interlocutory decrees ; and the observations of Mr. Justice Radeliff, in the case of Lc-Guen v. Gomeneur fy Kemble, which have been cited, are correct. There are some interlocutory orders that must be appealed from in fifteen days ; such as an order for an issue. It is not necessary, and may be improper, to particularize all the cases in which an order is so strictly interlocutory , that it must be appealed from within that time. I see no danger of the abuse, or the mischievous consequences which, it is apprehended, are to flow from this construction of the right of appeal. I am of opinion, therefore, that the objection ought to be overruled.

The rest of the judges concurred, and, by the unanimous opinion of the court, the appellant was allowed to proceed.

The Chancellor then assigned the reasons for his decree, which were the same as those contained in the report of the case, except as to some of the exceptions to the master’s report as to matters of mere fact, which he stated. (#Vidé S. C. 1 Johns. Ch. Rep. 65 . 77. 450. 459. 2 Johns. Ch. Rep. 543 . 3 Johns. Ch. Rep. 77 . 120.)

The cause was argued by T. A. Emmet and C. Baldwin, for the appellants, and by Harison and S. Jones, jun., for the respondents.

For the appellants, it was contended, 1. That the deed of trust was not actually delivered, and was, therefore, not operative. The fact of non-delivery being proved, there can be no presumptive delivery.

2. That if the management by Mary Jaques, or by her authority, of the real and personal estates mentioned in the deed of trust, and the acquiescence of J. J). J., her husband, were deemed sufficient ground to presume an effectual delivery of the instrument, such presumption could only be derived from parol testimony of the acts and declarations of the parties to

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the deed, and which would equally support the contemporaneous agreement, in relation to family expenses, and which was equally acted upon by them. The agreement relative to Mrs. Jaques maintaining the family establishment out of her own estate was made previous to the marriage, and the marriage was a sufficient consideration to support it; and it was not only thereby in part executed, but carried into complete effect during the life of Mrs. Jaques. This agreement is not inconsistent with the deed of settlement;, the object of which was to secure to her the power of disposing of her own property as she pleased.

3. The settled doctrine of the English law is, that where property is thus settled to the separate use of a feme covert, she has an unlimited power over it, and may dispose of it, to all intents and purposes, as if she wrere a feme sole, unless restrained by some particular provision in the deed of settlement. Courts do not look to the letter only, but to the spirit and intent of the instrument, which is construed in the most liberal manner, as to the relation subsisting between husband and wife.

This court will feel itself bound by a series of decisions in England, anterior to 1776; and now, when the question is, for the first time, brought before them, will adopt that rule of law which will place married *women, for their best security, in the hearts and affections of their husbands, rather than under the cold and unfeeling protection of a trustee.

By the common law, after marriage, the personal property of the wife belongs absolutely to the husband, and he, also, becomes entitled to the rents and profits of her real estate. It would have been well if this principle had never been departed from ; for why, when a wife has surrendered herself to the arms of her husband, and they are united in their affections, should their interests be separated ?

The English Court of Chancery, deriving much of its principles and practice from the civil law, first opened the way to the rales of that code, in relation to the property of married women. In that justly celebrated code, the property of married women is of two kinds; 1. Her dowry, in which the husband enjoys the revenue of the property during the intermarriage, but the ownership and disposal of the capital belongs to the wife ; 2. Her paraphernal property, the revenues of which are her own, and she may dispose of them, and of the principal itself, without the authority of her husband. (1 Domat. C. L. 161. 171. liv. 1. tit. 9. s. 1, 2, 3, 4.) When the Court of Chancery, in England, sanctioned and upheld the notion of a separate estate in the wife, and allowed this ante-nuptial contract, the natural inference is, that it adopted the whole of the law, as it stood in that well known code, and in the codes of every state in Europe which had adopted that system ; that is, that the wife should have the entire and absolute control and disposition of her separate estate. It did not intend, when it

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restricted the husband from his right, also, to restrain the wife, and put her under disabilities not flowing from the Roman law. But as this regulation of property could not be made so as to bind the courts of common law, it was necessary to have recourse to the well known agents of a court of chancery, and have the property vested in trustees, as mere instruments of conveyance, thereby avoiding the rules of common law, which do not allow the husband to be the grantee or trustee of his wife. If this was the motive for introducing trustees into these settlements, like trustees to preserve contingent remainders, or for a term of years, to raise #portions for younger children, it is an erroneous notion on which the chancellors of later times, as in Whistler v. Newman, (4 Vesey, 129.) and Mares v. Huish (5 Vesey, 692.) have founded their decisions; and which the chancellor, in delivering his opinion in the present case, has adopted from Lord Loughborough, (afterwards Earl Rosslyn,') that trustees were created for the protection of the wife, and “ to constitute, perhaps, the only sufficient shield against the undue, secret, and powerful influence of the husband.” Trustees were introduced merely to avoid the principles of the common law ; not to become the counsellors and champions of the wife against the husband. Suppose a wife, by her .husband’s influence, should choose to forego her settlement, the worst that could happen to her would be, that she would be in that situation in which the common law would have originally placed her, and which is most consistent with the nature of the marriage state, and the true policy of society. Connubial happiness is no where greater than in those countries where the wife relies on the affection of her husband, for protection and support. The idea of a trustee interfering in matters of property to control the impulses of affection or duty, is dangerous to the peace and happiness of families. The civil law, which i ook away all right from the husband over the paraphernal estate of the wife, approves of the wife putting herself under the conduct of her husband, and of entrusting him, rather than another, with the management of her estate. (1 Domat. 171.) The ablest chancellors in England have considered the matter in the same light. A court of chancery protects and relieves every person from the effects of fraud, imposition, duress, or undue influence ; and where either is proved, it will undoubtedly protect and relieve a wife, who may be more subject to it than persons in other relations of life, and whose interests, therefore, are to be more vigilantly and jealously watched than those of others. But as Lord Eldon justly said, in Parker v. White, (11 Vesey, 209. 222.) that if the husband conducts himself well, he did not know that she could make a more worthy disposition of her interest than to give it to him, though certainly the particular act should be looked to with jealousy. The observation, therefore, of Lord Loughborough, in Whistler v. * Newman, (4 Vesey, 144.) that if the rule laid down in Hvlme

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v. Tenant, (1 Bro. C. C. 16.) Pybus v. Smith, (3 Bro. C. C 340.) and Ellis v. Atkinson, (3 Bro. C. C. 347.) and which we contend is the correct one, “ is to be pushed to its full extent, a married woman having trustees, and her property under the administration of the Court of Chancery, would be infinitely worse off', and much more unprotected than she would be, if left to her legal rights,” is wholly unfounded. In regard to her personal estate, and the income of her real estate, she is in the same situation, and the real estate would, without any protective interference of trustees, be as well secured to her and her heirs, as at common law. The observation of the same chancellor, in Milnes v. Bush, (2 Vesey, jun. 488. 498.) that to apply the established doctrine, that a feme covi rt is, as to her separate property, to be regarded as a feme sole, as to transactions with her husband, would throw down all the guards which the maxims of the common law, and the prudence and care of the Court of Chancery had established with regard to trust estates in equity, and the influence of husbands, is equally destitute of foundation. Without speaking, at present, of the guards in equity, what are the guards at common law, against the influence of the husband, except her private examination, in passing a fine ? In regard to the personal estate of the wife, and the rents of her real estate, the husband has no need of any influence to gain the possession of them. Without a settlement, the wife stands in the same situation as at common law. With a settlement, she is in the situation of a married woman under the civil law. Why, then, should her condition be varied by imposing further restrictions on her power of alienation ? It might be said, with Sir John Scott, arguendo, in the case of Whistler v. Newman, “ possibly it may have occurred to the court, from time to time, that such provisions are rather mischievous than usefuland with Lord Macclesfield, in Powell v. Hankey, (2 P. Wms. 82.) that “ it was against common right, that the wife should have a separate property from the husband, (they being both, in law, but as one person,) so all reasonable intendments and presumptions were to be admitted against the wife in that case.”

#The same necessity which led to the introduction of trustees, as mere conduits of conveyance, to avoid the embarrassments created by the rules of common law, gave rise to the mode of giving to the wife the power of appointment; a power intended for the enlargement, not the restriction, of her rights. It was adopted when it was not yet perfectly settled how far a court of chancery would go, in supporting a separate property in the wife, beyond what was expressly provided for by the instrument of settlement, and continued, from technical habits, long after the necessity ceased. As these appointments were the only means of enabling the wife to exercise her separate ownership, courts of equity, having once adopted, and naturalized the right, disregarded the means, and gave her all the

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rights of ownership, whether the means expressed were adequate to that purpose or not, and whether they were pursued or not. In Hulme v. Tenant, (1 Bro. C. C. 16.) Lord Thurlow, acting on the case of Norton v. Turvill, (2 P. Wms. 144.) extended the principle so far,- as to consider the execution of a bond by the wife, jointly with the husband, and for his debt, a sufficient appointment, as to her separate personal estate, and that it would have been so, as to the rents of her real estate, had it not been for a technical legal difficulty, as to an execution against the real estate of the wife, on any judgment recovered on the bond. Though the doctrine of this case is not necessary to the present argument, yet it has been followed and acted upon, from that time until the case of Socket v. Wray, (4 Bro. C. C. 483.) decided in 1793, with the exception, perhaps, of the cases of Blackwood v. Norris, (Talbot’s Cases, 43. n.) and of Caverly v. Dudley, (3 Atk. 541.) which are noticed by the chancellor in giving his opinion in this case. The case of Blackwood v. Norris is only known from a very imperfect note in Cases temp. Talbot; and in Caverly v. Dud ley, it does not appear whether Lady Dudley was a. feme covert or not, and it was a case of a will, not of a marriage settlement. 11 was not a case in which the rights of husband and wife were brought into discussion. It may, then, be safely affirmed, that there is not a single decision, or a dictum, to be found in the books, prior to 1793, that the wife has not the absolute Ownership of her separate estate, under a settlement. This assertion is supported by the authority of a very able writer on this subject, (Clancy’s Essay on the Equitable Rights of Married Women, with respect to their separate property, 89—93, 94—» 105.) who says, while speaking of the case of Socket v. Wray, that, it “ was decided against the principle of all the authorities on the subject of the wife’s separate estate.” He observes further, (p. 93.) that “ the principié which Sir R. Pepper Arden intended to establish, by his decision in Socket v. Wray, was this, that whatever property was limited to a married woman in terms which, if she were sole, would give her the entire interest, and such limitation was accompanied by any restriction as to the mode of disposing of the fund, that such clause, having been introduced with a view to protect, her against her husband during the coverture, ought not to he dispensed with.” Without presuming to question the soundness of the principle, he submits, “ that it is directly at variance with the doctrine laid down in some prior leading cases on the subject, and that it has not been followed in any subsequent decision.”' He then continues his. examination of the cases, and says, (p. 105.) “ that with the exception of Socket v. Wray, they establish, that where there is a trust to the separate use of it married woman, with a power to her to appoint, (that power not being restricted to particular objects, and not depending on a contingency,) either in a prescribed form, or

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according to her own directions, there she has the completo property in the subject of the trust, and may exercise over it all the rights of ownership.” It is true, however, that either Parental affection or solicitude, or pride and selfishness, have sought in the imperfect expressions of appointments, or from wort*s having impliedly a restrictive meaning, for the means of controlling that absolute ownership, that necessarily was connected with the original idea of separate property, and to look for other guards against marital influence, than were to be found either in the civil or common law, by laying stress on such words, as the direction to trustees to pay the money into the wife’s own hand, or to pay it to her from time to time, or that her receipt alone should be sufficient. These efforts pretty uniformly failed, %nd the courts held, either that those expressions had not that meaning, or, if they had, that they were inconsistent with the idea of absolute ownership, and, therefore, to be disregarded. The chancellor, in his opinion, complains of this, and says that “ if the technical rule of law, that when a person is owner of property, he takes it with all its accidents, and that every restraint or alienation is repugnant to the ownership, be applied to these settlements, they may as well be abandoned at once, as delusive, for the most guarded proviso against alienation would be void.” This is a petitio principii. The rule is, that no restraint on alienation by the owner of the property shall be implied; but if expressed and dearly enjoined in the settlement, it shall prevail, unless contrary to the cardinal rules as to the alienation of property. But how is this a technical legal objection, or a technical rule of law? It is, indeed, to be found in Coke, { Co. Litt. 223.) and is a fundamental rule of law, founded on broad and beneficial principles of public policy. It is no more a technical rule of law, than that which declares that estate shall not be tied up in perpetuity. It is a rule of property; and Lord Northington has strongly said, in Wright v. Cadogan, (Ambler, 473. 2 Eden. Rep. 257, 258.) there is no rule so certain, so general, and so strongly adhered to by the ablest judges who have sat in chancery, as to observe, in omnibus, the rules of law, with respect to the regulation of property. They have been always strictly observed as principles in a court of equity. This very rule was the express ground of the decision of Sir R. Pepper Arden himself, in the case of Bradley v. Peixoto, (3 Vesey, 324.) which he supported by common law cases; and he adverts to his determination in Socket v. Wray. Though the earlier chancellors maintained the doctrine here contended for, yet some examples of improper influence on the part of husbands, calculated to excite sympathy for the wife, induced a wish to restrain her power of alienation. Such was the case of Pybus v. Smith ; (1 Vesey, 189. 3 Bro. C. C. 340.) there, a trader had eloped with an infant ward of chancery, and Lord Thurlow had compelled him to settle it on her, and her issue; and as to her life estate,

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to her separate use. The settlement, as usual, was referred to a %iaster, who studiously inserted the words, “from time to time,” &c. In ten days after the execution of the settlement, the husband prevailed on the wife to make a sweeping appointment of her life estate to his banker, as collateral security, and in two years thereafter became bankrupt; and a bill having been filed to enforce this appointment, the case came again before Lord Thurlow; the wife seeking to invalidate her act, for the maintenance of herself and family. Here was a very strong case, and Lord Thurlow labored to find/if possible, something in the words, “ from time to time,” to put a restraint on the wife’s power of alienation. Subsequent reflection, however, appears to have induced him to abandon this position; and he next fixed on the objection, that she ought not to be allowed to part with her separate property without a judicial examination in court. The same difficulty had once before very strongly occurred to him, in Ellis v. Atkinson, (3 Br. C. C. 347. 565. S. C. 2 Dickens. 759.) and induced him to retain the case so long under consideration, that the necessities of the parties forced them to a compromise; but he said, as stated by Dickens, that as the 2,000 pounds was in the absolute power of the wife, and no appointment intended for her children, or other purposes, and it was evidently her pleasure to give it to her husband, he did not see how he could prevent her.” Next came the case of Socket v. Wray, already mentioned. Lord Loughborough succeeded Lord Thurlow, in 1793, and decided the cases of Whistler v. Newman, (4 Vesey, 129.) and Moses v. Huish, (5 Vesey, 692.) It seemed, from these cases, as well as that of Socket v. Wray, that a change was about to be effected in the law of that court on the subject of the wife’s power over her separate estate. But the influence of these decisions was transitory. Neither Sir R. P. Arrien nor Lord Lough-borough had sufficient strength of judicial character to stem the current of authority for a century, nor effect what Lord Thurlow did not dare to attempt. As it is, however, on these two cases, that the chancellor, in this cause, has chiefly, if not wholly, rested his decision, it is well to observe how they have been received by the profession. In Sperling v. Rochfort, (8 Vesey, 164. 178.) Lord Eldon says, “ Wishing that the law may turn out for #the protection of married women to the extent in which it is represented in Whistler v. Newman, I find it impossible to reconcile all that is said in that case, to former cases.” Again; in Parker v. White, 11 Vesey, 209. 223.) he says, “ In Whistler v. Newman, I considered every point as settled; unless the case could have been decided upon the circumstance that M. was improperly dealing for his own interest. If it is asserted, that though Lord Thurlow, following his predecessors as far back as the doctrine can be traced, repeatedly decided upon this principle, this court has now a right to refuse to follow it, I am not bold enough to act on

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that position.” Again; he says, “Then came the case of Whistler v. Newman, upon which it does not become me to make any other remark, than that when this cause comes on to argue^ ⅞⅛⅛; it must be considered how far that case is con-sistent with the preceding authorities; if it is not, then, whether it was competent to the court in that year to refuse to make a decree, consistent with all the declarations of this court for a century.” The cause did come on again, (11 Vesey, 237.) when the case of Whistler v, Neuman was not further urged, and Lord Eldon decided directly contrary to its principle, saying, “ I cannot bring myself, upon any authority that I have seen, and the principle of which I can approve, to affect the disposition of the plaintiffs life estate.” In Dalbiac v. Dalbiac, (16 Vesey, 116.) the counsel for the defendant, in commenting on the cases of Whistler v. Newman, and Moses v. Huish, says, these two cases “ are always met by a series of authorities, previous and subsequent, with which they cannot be reconciled. They are now considered as two insulated cases, and receive no attention.” Mr. Sugden, in his Treatise on Powers, (2 ed. p. 111. note,) speaking of the opinion of Lord Loughborough, says, “ His decision, however, in Moses v. Huish, although universally considered by the profession as an unsound judgment, has not been since expressly overruled.” Mr. Atherly, in his Treatise of the Law of Marriage, and other Family Settlements, (p. 335. in note.) speaking, also, of the case of Moses v. Huish, observes, “ His lordship's opinion, however, is not considered as law, as it stands opposed by several decisions, both anterior and subsequent; %nd Mr. Clancy, (123.) says, “ Now' it would appear, that these two decisions ( Whistler v. Newman, and Moses v. Huish) are quite contrary to the course of authorities that were previous to them, and that they have been overruled by the cases of Wagstaff v. Smith, (9 Vesey, 528.) Sturges v. Corp, (13 Vesey, 190.) Essex v. Atkins, (14 Vesey, 542.) and other subsequent cases.” Indeed, the chancellor admits that Essex v. Atkins clearly overruled the case of Moses v. Huish, and Sir Samuel Romilly, in his argument of the former case, observed that the latter had been frequently overruled.

In Fettiplace v. Gorges, (1 Vesey, jun. 46. 48.) Lord Thur-low says, “ The first case upon the subject is a very old one in Toihitif which must have been in the reign of Elizabeth, The case of Blysse v. Sayers, (4 Viner, Abr. 130. Cases temp. Finch, 108.) was decided in 1673; the case of Powell v. Hankey, (2 P. Wms, 84.) was in 1722; Norton v. Turille, (2 P. Wms.) in 1723; Ridout v. Lewis, (1 Atk. 269.) in 1728; and Standford v. Marshall, (2 Atk. 69.) in 1740: and then follow the cases of Clarke v. Miller, (2 Atk. 379.) Allen v. Passworth, (1 Vesey, senr. 163.) Christmas v. Christmas, (Select Cases in Chancery,) (2 Equ. Cases Abr. 152.) and the other cases commented on by the chancellor; and to which

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may be added, Hearle v. Greenback, (1 Vesey, sen. 298.) Fettiplace v. Gorges, (3 Bro. C. V. 3. 1 Vesey, jun. 46.) and Frederick v. Hartwell, (1 Cox’s Rep. 193.) so that Lord Eldon was right in saying that this doctrine had existed for more than a century previous to the decision in Whistler v. Newman, In the case of Blysse v. Sayers, (Finch Rep. 108.) which is exactly parallel to the present case, the wife, before her marriage with her second husband, made an agreement similar to the one in the present case, reserving all her personal and real estate to her own disposal; and the intended husband covenanted that the trustees should enjoy the same, and dispose of them as she, by writing under hand and seal, in presence of two witnesses, might appoint; and that she might make a will: and after the marriage, the husband took a house, and the wife borrowed money and repaired and furnished it, and before her death, by deed, directed her trustees to pay her husband *1,000 pounds, and gave her goods, &e. to her daughter; and the husband was discharged from paying the money for repairing and furnishing, the house, and the same was directed to be paid out of the wife’s own estate. In Barford v. Street (16 Vesey, 135.) the property was devised to a trustee, to pay the rents, issues, interest, and profits, to Mary Barford, then unmarried, during her natural life, to her separate use, and not to be under the control, &c. of any future husband she might marry, &c., and from and after her decease, in trust, to convey the estate to such persons as she, in her life time, whether married or single, should, from time to time, by any deed or deeds, or writing, &c., or by her last will, appoint. On her application, by bill, to the Court of Chancery, it was directed that the property should be conveyed to her absolutely. The master of the rolls said, that “ an estate for life, with an unqualified power of appointing the inheritance, comprehends every thing.” In Wright v. Englefield, (Ambler, 468. 473.) Lord JSorthington says, “ It has been admitted, that if a woman before marriage retains a power over her legal estate, to be exercised by way of execution of the power, she may do it; and though she has not done it with all the forms, yet the court will supply them in favor of a person having a meritorious consideration.” In Pybus v. Smith, Lord Thurlow had said, that if it was the intention of the parent to give a provision to a child in such a way that she cannot alienate it, he saw no objection to its being done ; but such intention must be expressed in clear terms. Following up this idea, he introduced (but struggling hard, as Lord Eldon observed in Jackson v. Hobhouse, 2 Merivale’s Rep. 483. 487. Brandon v. Robinson, 18 Vesey, 434. with the prior decisions, but yielding, at length, to their strength) into a settlement in which he was a trustee, words of positive restraint, “ not to be paid by anticipation.” Mr. Sugden (on Powers, 110-.) says, that :i upon the first introduction of the words £ by anticipation,’ it was the general opinion of the profession, that they

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were simply void, and that the woman’s power of alienation still existed. Equity, in upholding settlements on a married woman for her separate use, considered her, for this purpose, as a feme an<^ viewed in *that light, she must, like a person sui juris, take the property with all its incidents.” That doubt shows how strongly a technical rule of law was applicable to cases where a restraint was sought to be implied from the mention of a partial appointment. Mr. Sugden, indeed, urged the same argument, as counsel in the case of Jackson v. Mob-house ; but he was told by Lord Eldon, that Lord Alvanley, who followed Lord Thurlow, “ thought it a valid clause, and so it had been considered ever since. It was now too late to contend against the validity of a clause in restraint of anticipation.” The mode in which they supported that clause, shows how fixed they considered the application of the rule to be to the ordinary provisions of settlements. Lord Eldon observed (18 Vesey, 434.) that Lord Thurlow “ did not attempt to take away any power the law gave her as an incident to property, which being a creature of equity, she could not have at law; but, as under the words of the settlement, it would have been hers absolutely, so that she could aliene, Lord Thurlow endeavored to prevent that by imposing upon the trustees the necessity of paying to her, from time to time, and not by anticipation ; reasoning thus, that equity, making her the owner of it, and enabling her, as a married woman, to aliene, might limit her power over it,” Whether that reasoning be sound or not, it is now decided, and received as law, that a married woman may, by positive and express provisions, or by such as, by clear and necessary implication, show the positive intention, be restrained ; but it is equally certain, that where the wife has the absolute dominion over the property, and there are no words of restriction, her power of alienation is absolute ; and no restriction • can be inferred, or made available, either from the want of expressing a power of appointment, or the mere mention of a particular one. And Mr. Sugden (on .Powers, 114.) very truly says, that “ there is no inconvenience in this doctrine, because express words of restriction are now universally used, where it is intended that the wife shall not have the absolute dominion.” In this way, every thing that made Lord Thurlow, Lord Eldon, Lord Loughborough and Lord Alvanley anxious to affect the current of cases, and the two latter to disregard them, has been accomplished : And the English system, as to the property #of married women, thus completed, is the most beneficial and perfect in the world. A woman who is willing to commit her fortune, with her person, to her husband, from the first moment of their union, may repose on the common law. A woman more cautious, and less confiding, may resort to the doctrines and privileges of the civil law; and those who, from peculiar motives of suspicion, are protected by their own, or by parental solicitude, from every possible

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accident, or excess of conjugal confidence, may have their caprice or their caution gratified, by words of precise and posi~ tive restriction. The lines of distinction as to each are exactly drawn, and in these three modes are the rights of married women provided for, and guarded in the best possible way. It is after such a system has been established, in a case exciting no peculiar sympathy, where the wishes of the wife to have the power of alienation were made clearly known by words and acts, that the decree was made which has given rise to this appeal.

But it is said that a wife cannot transact- with her husband, but she may, if there are no improper practices on his part. (Grisley v. Cox, 1 Vesey, senr. 518. Pybus v. Smith, 3 Bro. C. C. 34. Ellis v. Atkinson, 1 Vesey, jun. 189. Rich v. Cockell, 9 Vesey, 369. Parker v. White, 11 Vesey, 222.) In Pawlet v. Delaval, (2 Vesey, senr. 663.) there was a. parol disposition by the wife to the husband, of the capital or principal of her property. Mr. Clancy, (p. 166.) after examining the cases, concludes, “ that there can be no doubt, at the present day, that a married woman may give her separate estate to her husband, and the gift will be established, if no unfair advantage be taken of her, in the transaction.”

The marriage was a consideration, sufficient to support the previous parol agreement, that the family establishment was to be supported out of the separate property of the wife. Mrs. Jaques has always acted under this agreement, and the appellant is in possession of the property under it. Can it, then, be taken away from him, at the suit of these devisees ? She had the absolute ownership; the clause in the agreement restrains her from aliening without her husband’s concurrence. This is not to be construed so as to prohibit her *from aliening with his consent. In her lifetime, she gave money to Mrs. B., and to the Methodist Episcopal church, without deed. Why, then, might she not give money to her husband without a deed, witnessed by two witnesses ? The plaintiff in error is in possession of the property, and the defendants in error seek to obtain it under an equity; and the plaintiff in error may give parol evidence to rebut that equity. (Longfield v. Hodges, Loft, 230. Rider v. Kidder, 10 Vesey, 360. Phillips on Ev. 450.) “ A defendant may be admitted to prove, by parol evidence, that, after signing a written agreement, the parties made a verbal agreement, varying the former ; provided those variations have been acted on, that the original agreement can no longer be enforced without fraud upon the defendant.” This principle, though laid down in regard to cases of .specific performance, is, also, applicable in the present case. So, where an appointment is imperfectly executed, equity will supply the defect, in favor of a person having a meritorious consideration, such as marriage. But Mr. J. does not claim the money as a gift; it was expended for the benefit of the wife, and, ac' or<l

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ing to her directions, to supply occasional demands on her, f°r family expenses, repairs, &c. In the case of a married woman having a separate income, though the husband is equally under a moral obligation to support his family, and fully able to do so, he is not held liable to account, after the death of his w'^e> f°r money received by him from the trustees of the wife for her maintenance. (Brodie v. Barry, 2 Vesey & Beames, 36, Sir Samuel Romilly, arguendo. 3 P. Wms. 355. per Lord Talbot.') Common sense and common equity sanction the doctrine, that the separate property of the wife ought to contribute to her maintenance, or to expenses incurred for her benefit. If a husband is bound to maintain his wife, it is according to his fortune and condition in life, not according to the fortune and rank of his wife.

As to the Beyl property, it belonged to the husband, subject to the charge of what was due to the wife on the mortgage. The counsel then entered into an examination of the accounts and the evidence.

*For the respondents, it was contended, 1. That the deed of settlement was well executed, and was a valid deed. (Souverby v. Arden, 1 Johns. Ch. Rep. 240 . Sterry v. Arden, 1 Johns. Ch. Rep. 261 .) But even if the objection as to the delivery was well founded at law, yet the instrument is valid in equity, as an ante-nuptial contract. If necessary, a court of equity would compel an actual delivery of the deed. ( 1 Johns. Ch. Rep. 75 . Powell v. Hanlcey, 2 P. Wms. 343. 2 Freeman’s Rep. 205.)

2. As to the legal construction and effect of this deed. It was never the intention of this instrument, that Mrs. J. should dispose of her estate, as she pleased, by parol, without any appointment by deed or will. No more was intended than that she might take the rents and profits. (Gore ?. Knight, Free, in Ch. 255. 2 P. Wms. 82. ) On any other construction, the deed of settlement would be idle and nugatory. The wife’s consent, as to the rents and profits received by her husband, is implied, but not as to the principad, though received by the husband, and without any disapprobation expressed by the wife. A feme covert can dispose of her separate estate in the way only prescribed by the deed of settlement. If there is no settlement, she may dispose of it as she may think proper; but when the mode of disposition is prescribed by deed, her character of a feme sole, in regard to her property, is so far qualified, and she must act in the mode prescribed. Why prescribe a mode of executing a power, if that mode is not to be pursued ? The wife can exercise no other power over her settled property than is reserved to her by the settlement. She cannot dispose of, or charge her separate estate, even by her consent in court, unless in the mode prescribed by the instrument creating her separate estate. (1 Madd. Ch. 379, 380.

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10 Vesey, 585, 586.) The form imposed on the execution of the power, is to preserve the person to whom it is given from a hasty and unadvised execution of the power. (Sugden on Powers, 203. ch. 5. s. 3. 3 Cases in Ch. 66.107.) The object of Mrs. J. was to prevent her husband from getting possession of her property, through her own weakness and unadvised acts, It is a power reserved to be executed in a particular way. If a person reserves to himself a power to #dispose of property by a deed signed in the presence of five witnesses, and executes a deed in the presence of three witnesses only,*the deed is void. The expression of a particular mode of executing a power, excludes every other mode of doing it. It is a restraint on the weakness of the wife; and against whom, in this respect, is she to be protected, but her husband ? Against one whose influence is the greater in proportion to their mutual love and attachment. The case of Fettiplace v. Gorges, and the other cases cited by the counsel for the appellants, if they have any application, support this doctrine; and it is recognized and repeated by Yiee Chancellor Plumer, in the case of Francis v. Wigzell. (1 Madd. Ch. Rep. 258. 261.) “A feme covert, having separate property to her own use,” he says, “may, generally speaking, dispose of it as a feme sole; but if the instrument by which she acquires it, prescribes any particular mode in which she must part with it, her disposition of the property must be according to the terms of such instrument.” (1 Madd. Ch. 377. 388.) The deed or instrument by which Mrs. J., as a feme covert, had any power or right, during coverture, over her separate estate, prescribes, in express terms, the mode in which that power is to be exercised, it is admitted, that if negative words were used in the deed of settlement, as to any other mode of disposition, the power of the wife would be limited and restrained. But in principle, negative words can make no difference. Her power, being wholly derived from the instrument, must be governed by it. A contrary doctrine would destroy the whole system of family settlements. There never was a trust deed that did not create a restraint on alienation. The very creation of a trust imposes a restraint. Though the cestui que trust has the beneficial interest in the estate, yet both she and the trustee must be regulated by the trust deed. If the doctrine of the appellants is to prevail, there must be an end to all trust estates. In cases of settlement, the shield that was intended to protect the wife, would not only be taken away, but she would be in a worse situation than she would have been had no settlement been made. All the cases on this subject have been so fully examined by the chancellor, that it is unnecessary to repeat them. The principle %> be deduced from them is, that the wife is a feme sole, as to her separate property, so far as the deed of settlement makes her so, and no further. The case of Jackson v. flobhouse (2 Meriv. 483.) confirms the doctrine for which

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we contend; and the same principle is to be found in Ewing v- Smith, decided by the Court of Appeals in South Carolina, (3 Dess. Rep. 417.)

Again ; this deed of settlement is evidently drawn in reference to the statute of mes. The power, when executed by deed, in the mode prescribed, passed the real estate ; so that the uses shifted by force of the appointment. If the wife undertook to convey her property, in any other way, no use would arise, but would remain in the trustee.

Again»; where a wife’s power of alienation is not restrained by a deed of settlement, she may dispose of it as she pleases, in regard to third persons; but she cannot do so in regard to her husband. (I Mad. Ch. SIT. 2 Vesey, jun. 498. 4 Vesey, 15. 16 Vesey, 116. 123.) It is on the same principle, that the law is jealous of all dealings between a trustee and a cestui que trust. The transfer set up in the present case, is a mere parol disposition by the wife. But where is the witness of such a parol gift ? No one pretends to have been present at such donation. The witnesses merely depose to certain subsequent declarations of the wife. Such evidence as has been adduced in support of this pretended gift was never allowed to be of any weight in a court of justice. In a court of law it would not be tolerated for a moment, that a trust estate could be so transferred ; and the rules of evidence are the same in a court of equity as in a court of law. There is no pretence of fraud in this case, to bring it within the rule cited from Phillips, (p. 452.) as laid down in Pember v. Mathers; (1 Rro. C. C. 51.) and even that case has been doubted. (Phillips’s Ev. 453. 14 Vesey, 524. 7 Vesey, jun. 211. 6 Vesey, 338.)

As to the pretended agreement before marriage, that the family establishment was to be supported out of the wife’s separate estate, there is no evidence but of mere parol declarations ; and whether made before or after marriage, does not satisfactorily appear. Why was not so important a matter inserted in the deed of settlement ? The ^evidence, at most, amounts to no more than a declaration of intention. The law imposes on the husband the obligation of maintaining his wife, out of his own property, notwithstanding she has a separate estate secured to her. The cases of Brodie v. Barry, and Fowler v. Fowler, (3 P. JVms. 353.) are exceptions to this general rule, depending on peculiar circumstances.

As to HeyPs mortgage, Mr. J. purchased in three prior in-cumbrances, but with the separate money of his wife: the evidence fully contradicts his answer, that he made the purchase with his own money. He is, therefore, a trustee for his wife.

The validity of the deed of settlement has been denied, on the ground that it was never delivered to Mr. Cruger, the trustee. There is no positive evidence that a formal delivery took place. The possession of the deed by Mrs.

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Jaques is not, inconsistent with a delivery to Cruger ; for the possession of the deed by the cestui que trust was, in a legal \iew, the possession of the trustee. The deed of the 12th of September, 1812, executed by John D. Jaques and his wife, professedly in virtue of the deed of settlement, and in execution of the power contained in it, and the will of Mrs. Jaques, which professed,'also, to be made under the power reserved by that deed, the appointment of her husband as one of her executors, and his qualifying and acting as such executor, are decisive proofs, as regards him, that the settlement deed was well executed ; and after such* repeated and solemn acts of recognition, he cannot be heard to say the deed of settlement was not deli vered.

It appears that Mrs. Jaques was the owner of a considerable real and personal estate ; and it does not admit of a doubt, that her object, in making the deed of settlement, was to guard against the legal effects of a marriage, which, by operation of law, would devest her absolutely of her personal estate, and take from her, during the coverture, all control over her real estate. ] ler motives could not be to guard against herself, but to retain dominion over her estate, and to prevent her intended husband from intermeddling #with her estate, any further than she was pleased to allow.

The deed of settlement is upon the trust, that the trustee should permit her to hold, enjoy, and let the premises conveyed, and receive and take the rents and profits, and that her receipts should alone be sufficient discharges ; so that the same should not be subject to the debts, control, or intermeddling of her intended husband, but should be to the only use, benefit and disposal of her, dtiring her natural life, and then to the u-e of those to whom she should grant or devise the same, by iier last will and testament, lawfully executed. The question is, whether Mrs. Jaques, with respect to her estate, is not to be regarded in a court of equity as a feme sole, and may not dispose of it as she pleases, without regard to her trustee; there being nothing in the deed of settlement requiring the consent or concurrence of her trustee, nor any negation of an unlimited power of disposition of the estate by her.

I have examined this case with the unfeigned respect which T always feel for the learned chancellor, who has denied the right of Mrs. Jaques to dispose of her estate, without the consent or concurrence of her trustee ; and I am compelled to dissent from his opinion and conclusions. From the year 1740, until 1793, (with the single exception of the opinion of Lord Bathurst in Hulme v. Tenant, which occurred in 1778, and in which case a rehearing was granted by Lord Thurlow, and the opinion reversed,) there is an unbroken current of decisions, that a feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of

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her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. There are nearly twenty cases decided by Lord Hardwick e and Lord Thurlow, containing the principle I have stated, and which I shall not weary the patience of the court by citing. The case of Sockett v. Wray Br. Ch. C. 483.) before Sir 11. P. Arden, (Master of the Rolls,) in 1793, was the first case to break the continuity of decisions. This formed a precedent for the case of Hyde v. Price; (3 Vesey, jun. 437.) then #followed the cases of Whistler v. Newman, (4 Vesey, jun. 129.) and Mores v. Huish, (5 Vesey, jun. 692) decided by Lord Loughborough. In Whistler v. Newman, Lord Loughborough admitted, that the cases had gone the length, and that he was bound by them, that if a married woman has separate property, she may dispose of it, and the trustees were bound to follow her disposition. In Mores v. Huish, his lordship distinguished it from the preceding cases. These cases are succeeded by many others, after Lord Eldon became chancellor, in which he restored the law to its first and ancient principle. In the case of Parkes v. White, (11 Vesey, jun. 209.) he reviewed all the cases, and strongly intimated, that the decision in Whistler v. Newman was in opposition to all the authorities for a century. He laid down the rule to be, that a married woman, having an estate to her separate use, is capable of disposing of it, provided the transaction is free from fraud, and no unfair advantage is taken of her.

The mistake into which I think the chancellor has fallen, consists in considering Mrs. Jaques restrained from disposing of her estate in any other way than that mentioned in the deed of settlement. The cases, in my apprehension, are clearly opposed to this distinction; and I am entirely satisfied, that the established rule in equity is, that when a feme covert, having separate property, enters into an agreement, and sufficiently indicates her intention to affect by it her separate estate, when there is no fraud or unfair advantage taken of her, a court of equity will apply it to the satisfaction of such an engagement. This was the principle adopted by Lord Hardwicke, in Grizby v. Cox, (1 Vesey, senr. 517.) and the same doctrine prevailed in Pybus v. Smith, Ellis v. Atkinson, and in Newman v. Cartony, (3 Br. Ch. C. 340. 346.) In Pybus v. Smith, Lord Thurlow observed, if a feme covert sees what she is about, the court allowed of the alienation of her separate property. The same principle was adopted in Fettigplace v. Gorges, (3 Br. Ch. C. 8. 1 Vesey, jun. 46.) and in Wagstaff v. Smith, (9 Vesey, jun. 520.) It seems to me, that the power reserved to Mrs. Jaques, by the deed, has been misconceived ; I understand it, that during her life, her estate is to be at *her absolute disposal, with a further power to grant and devise it by her last will and testament; but if the power of disposition was specifically pointed out, it wmuld not preclude the adoption of any other mode of disposition, unless there were

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negative words restraining the exercise of the power, but in the very mode pointed out. .

Chancellor Dessaussure, in 3 Equity Reports of cases determined in South Carolina, p. 427., has, with great ability, ex-arnined all the cases upon this subject, and arrived at the con-elusion I have formed. It is true, that his opinion, and that of Chancellor Thompson, who concurred with him, were overruled by the three other chancellors ; but it was upon the express ground, that the question was res nova in that state, arid that they were not bound by decisions in England in consequence of a colonial statute of 1721. And those who differed in opinion from chancellor Dessaussure, admit that his opinion was in conformity with the English decisions.

This is the first case in which the power of a married woman having separate property, to dispose of it at her will and pleasure, when not expressly restrained in the mode of exercising that will, has arisen in our courts. I confess that my partialities in favor of marriage settlements are not so strong, as to induce any desire to see the law altered. Generally speaking, the rules of the common law, which give to the husband all the wife’s personal property, and the rents and profits of her real estate during coverture, are better calculated, in my judgment, to secure domestic tranquillity and happiness, than settlements securing to the wife a property separate from and independent of the control of the husband. An improvident and dissipated husband may squander his wife’s property, and reduce both of them to penury and distress. On the other hand, the possession by the wife of property, independent of and beyond the control of the husband, would be likely to produce perpetual feuds and contention. Marriage is a union of persons and interests, pro bono et malo, and the ancient provisions of the common law show forth, in our own country, decisive proofs of its benign and salutary influence. I have, all along, intended to be understood, that the disposition by the wife must %e free, neither the result of flattery, nor of force, or harsh and cruel treatment; and in the present ease there is no evidence, that Jaques treated his wife with unkindness, or employed any censurable means to induce her to bestow her bounty on him ; on the contrary, the evidence is that he uniformly treated her with kindness and affection.

It necessarily results from the power which I suppose Mrs. Jaques to have had over her property, that she might give it away, without any formal act, in the same manner as though she had been sole; and her agreement that the family expenses were to be borne out of her estate, especially when executed by her, was a valid act. She was well situated as regards property,' while her husband was in quite moderate circumstances. She chose, after the marriage, to maintain her former equipage, and the husband acquiesced in her .wishes. It would be extremely hard and unjust, to throw upon him the charge of her

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establishment, when it is clear that she meant to defray the expense of it herself. My opinion, accordingly, is, that the agreement is valid, and that the husband is not only not to be charged with any sums of money expended for the maintenance of the family, but that he is to be allowed for all advances for object; and also for moneys advanced for necessary reparations to her estate.

The chief justice then examined the other points in the case ; but as no legal principle was involved in the discussion of them, it is unnecessary to state the remainder of his observations.

The facts in this cause are so multifarious and complicated, and the field opened for legal research is so extensive, that I approach the investigation with great embarrassment and diffidence.

As to the first question, I concur in the opinion of his honor the chancellor, that the deed of marriage-settlement must be deemed valid and binding ; and having come to that conclusion, for the reasons assigned by him, it is unnecessary here to repeat them.

#The important question presented in this cause is, as to the construction and effect of the marriage-settlement. On this point, after much labor and reflection, I am compelled, notwithstanding my unfeigned and habitual deference for his great learning and distinguished talents, to dissent from the opinion of his honor the chancellor. He admits the rule, “ that a married woman is considered in equity, with respect to her separate property, as a feme sole; and is held to have an absolute dominion or power of disposition over it, unless her power of disposition be restrained by the deed or will under which she became entitled to it.” And as to the rule of construction, he also admits, that “ the weight of book-authority, and especially of the writers who have treated on this branch of the law, is against his conclusion and that “ they seem to hold, that there must be an express restriction upon alienation, either absolutely, or in some other mode than the one mentioned, or the wife will not be bound.” The chancellor says, “ Such strong aversion to the wife’s independent enjoyment of her separate estate, manifested so early in the history of the cases, may have given a permanent tone and color to the doctrine of the court.” With great respect, I ask, in reply, May it not rather be said, that the “ tone and color” of the modern decisions are accommodated to the excessive refinements of society, and the artificial innovations, in regard to the rights and duties of good old English matrimony ? In the language of Sir Wm. Blackstone, “ By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the mar

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riage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover she performs every thing.” I confess, that I love and venerate the primeval notion of that mystical and hallowed union of husband and wife: when “they twain became one flesh;” when they “ forsook father and mother, and clave to each other” with unreserved confidence. Marriage, in that old fashioned sense, is the purest source of domestic joys, and the firm foundation of social order.

#I bow to the rule, as I find it established : but I lament the complicated and artificial anomalies in the relations of domestic life, which have grown, and are still growing, out of the practice of marriage-settlements. They give to the wife the amphibious character of a feme covert and tí feme sole. I view it as an adulteration of that holy union : as a divorce, pro tanto, Of the marriage contract. A wife, in the “ independent enjoyment of her separate estate,” armed with distrust of her husband, and shutting out his affections and confidence, by refusing to give her own in mutual exchange, is an object of compassion and disgust. Legal chastity cannot be denied to her.: but there is danger, that the sacred institution of marriage may degenerate into mere form. It is sometimes, in practice, little more than legalized prostitution ; and the parties seem to have no higher objects than sexual intercourse, and the sanction of legitimacy for their offspring. If, in the rapid progress of refinement in civilization, it shall be thought expedient to go one step further, and to allow the wife, by ante-nuptial contract, to stipulate for an exemption from personal control over her by the husband, then the quasi divorce would be extended one degree further, so as to confer on her the independent enjoyment of the rights and privileges of a kept mistress. But she would have little claim, indeed, to the endearing appellation and character of a wife.

The new rule, introduced by Sir R. P. Arden and Lord Loughborough, and which has beén adopted by his honor the chancellor in this case, will, I think, tend to sever, in some degree, the marriage union ; because it not only renders the wife independent of her husband, as to her fortune, but bars him from a participation of it, by new and increased impediments; as if he were presumed to be her worst enemy. Now, if matrimony is not safe and desirable, without these trammels, and fences, and reservations, and restrictions, I say, marry not at all! The ancient rule was adapted to the state of English manners in the days of Lord Macclesfield, and accords best with the general simplicity of society among us at this day. I know that particular cases often occur, when such restraints would be salutary ; *but, as a general rule, their operation would be unfavorable to connubial happiness. The same benign policy, which forbids divorces a vinculo, also forbids the extension of a rule, which impairs the union, and lessens the

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attributes of holy matrimony. It is better that confidence between husband and wife should sometimes be abused, than that it should not exist in that relation. We often see acts of tyranny and cruelty exercised by the husband towards the person of the wife, of which the law takes no cognizance ; and yet 110 inan wisdom and reflection can doubt the propriety of the rule, which gives to the husband the control and custo dy of the wife. It is the price which female wants and weak ness must pay for their supply and protection. That a woman should contemplate her intended husband as likely to become her enemy and despoiler, and should guard herself against him as a swindler and a robber, and then admit him to her embraces, presents a sombre and disgusting picture of matrimony. Marriage justly implies a union of hearts and of interests ; and the modification of that relation, which excessive refinements have introduced, is a fungous excrescence which this court cannot lop off; but we can and ought to prevent its growth.

Of the same character was the new doctrine of Lord Mansfield, and his associates, in the case of Corbett v. Poelnitz, (1 T. R. 5.) in which it was decided, that if husband and wife choose to separate, and the husband allows the wife a separate maintenance, she may contract and be sued, as though she were unmarried, and may be held to bail and imprisoned on a ca. sa. without her husband. That innovation was made on the ground that “ as the times alter, new customs and new manners arise, which require new exceptions, and a different application of the general rule. But it was soon discovered that, instead of waiting to follow, the Court of K. B., on that occasion, outran the customs and manners of altered times; and in Marshall v. Rutton, (8 T. R. 545.) and Wardell v. Gooch, (7 Past. 582.) Lord Kenyon and Lord Ellenborough restored the ancient rule.

I would not be understood as censuring, indiscriminately, the precaution of placing the property of the wife in the hands of trustees, to shield it from the previous creditors of *the husband. It is undoubtedly often just and commendable for parents to make family settlements, so that daughters may be protected from the effects of prodigality, want, and oppression. But all this may be consistent with the idea of a community of interest between husband and wife; so far, at least, that she may permit him to participate in the enjoyment of whatever is her own. It must, however, be admitted that, by our law, a woman may, by marriage settlement, so transfer her estate, as to devest herself irrevocably of all right of future control or disposition of it. So, also, she may limit and restrict herself, as to the precise mode of disposing of her separate property. But this is against common marital rights; it is generally unfavorable to conjugal happiness, and is inconsistent with public policy. I, therefore, incline to the rule of equity as administered by Lord Macclesfield, Lord Talbot, Lord Hardwicke,

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Lord Thurlow, and Sir Hit Ham Grant; and as it was very ably, though unsuccessfully, vindicated by the learned and venerable Chancellor D.essausmre, in the case of Ewing v. Smith {3 Equ. ji<p. S. Carolina, 447.) which rule I understand to be substantially this : that a Jeme covert, having a separate estate, is to be regarded as a feme sole, as to her right of contracting for and disposing of it. The jits disponendi is incident to her separate property, and follows, of course, by implication. She may give it to whom she pleases, or charge it with the debts of her husband, provided no undue influence be exerted over her ; and her disposition of it will be sanctioned and enforced by a court of equity, without the assent of her trustee, unless that assent be expressly made necessary by the instrument creating the trust. And the specification of any particular mode of exercising her disposing power, does not deprive her of any other mode of using that right, not expressly, or by necessary construction, negatived, in the devise or deed of settlement. (Powell v. Hankey, 2 Peere Wms. 82. Squire v. Dean, 4 Bro. 326. Smith v. Camelford, 2 Ves. jun. 698. Brodie v. Barry, 2 Vesey and Beame, 36. Dalbiac v. Dalbiac, 16 Vesey, 126. Peacock v. Monk, 2 Vssey, 190. Norton v. Turvill, 2 P. Wms. 114. Ridout v. Lewis, 1 Atk. 269. Stanford v. Marshall, 2 Atk. 69. Allen v. Papworth, *1 Ves, 163. Penns v. Peacock, Cas. temp. Talb. 41. Grigby v. Cox, 1 Ves. 517. Pawlet v. Delaval, 2 Ves. 663. Newman v. Cartony, 3 Bro. 347. Hulme v. Tenant, 1 Bro. 16. Pybus v. Smith, 3 Bro. 340. Heatly v. Thomas, 15 Ves. 596. Fettiplace v. Gorges, 3 Bro. 8.)

The ante-nuptial agreement qualifies the marriage contract, so that the wife retains all the rights which she could have exercised over the property as a feme sole; except so far as she has, in express terms, incapacitated herself by that instrument. The trustee is the mere depositary of her title and estate, in order that her husband may not come to the possession or enjoyment of it without her consent; and that it may not be liable to the claims of his creditors, unless she chooses so to apply it.

t admit that she may give larger powers to her trustee, so as to lock up the estate, or restrain her own disposing power over it, if the deed necessarily imports such intention. But, as was said by Lord Macclesfield, in Powell v. Hankey, (2 P. Wms. 82.) “it is against common right, that the wife should have a separate property, (the husband and wife being in law but one person,) so all reasonable intendments and presumptions are to be admitted against the wife.” In that case, the marriage settlement bore a strong resemblance to the one now before us; and after the marriage, the wife permitted her husband to receive the interest of all her securities, without any complaint to the debtors who paid the moneys, or to . her trustee; and the lord chancellor, therefore, “intended that tins husband received the interest by her consent, as a gift from

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her; and that the husband, acting on that presumption, might have lived in a more plentiful manner: the comfort whereof the wife must, have shared in.” An account against the husband’s executors for those moneys was, therefore, refused.

In Peacock v. Monk, (2 Vesey, 290.) Lord Hardwicke said, “ Where there is an agreement between husband and wife before marriage, that the wife shall have personal property to her separate use, she may dispose of it by an act in her life, or will: she may do it by either, though nothing is said of the manner of disposing of it.” So, in the case of Grighy v. Cox, (1 Vesey, 517.) Lord Hardwicke stated #the rule to be, “ that where any thing is settled to the wife’s separate use, she is considered as a feme sole, and may appoint in what manner she pleases ; and that her trustees need not join, unless made necessary by the instrumentand that “ the wife might make an appointment in favor of her husband, if fairly procured, without improper influence.”

In Hulme v. Tenant, (1 Bro. 16.) and in Pybus v. Smith, (3 Bro. 340.) Lord Thurlow followed the same old rule, yielding, though with reluctance, to the uniform current of authorities. In Heathy v. Thomas, (15 Vesey, 595.) Sir Wm. Grant adhered to the ancient rule. But in Sockett v. Wray, (4 Bro. 383.) and in Hyde v. Price, (3 Vesey, 437.) Sir R. P. Arden resisted the hitherto unbroken current of decisions; and in Milnes v. Bush, (2 Vesey, jun. 488.) Whistler v. Newman, (4 Vesey, 129.) and Mores v. Huish, 5 Vesey, 692.) Lord Loughborough followed in this new tract. In Sperling v. Rochfort, (8 Vesey, 164.) Rich v. Cockell, (9 Vesey, 369.) and Jones v. Harris, (9 Vesey, 497.) Lord Eldon vibrates, and falters, and doubts, till, in the last case, he comes to the hesitating avowal, that it was “ an open question, and one doubtful, and deserving of a very full review, whether the separate property of a feme covert might be charged in a different form from that prescribed by the instrument.” In the subsequent case of Parkes v. White, (11 Vesey, 209.) Lord Eldon said his mind was in great distraction on this subject; but he admitted that Lord Thurlow, “ in his decisions on this principle, had followed his predecessors, as far back as the doctrine can be traced and he concluded, by saying, “ If it be asserted that this court has now a right to refuse to follow it, I am not bold enough to act upon that position.”

The ante-nuptial agreement, or deed of settlement in this case, recites that the intended husband “ has agreed not to in-termeddle with, or have any right, title or interest, either in law or equity, to any part of the rents, issues, profits or proceeds of her property, real and personal; but it is to continue, remain, and be to her, or to such uses as are in this deed of settlement expressed.” The deed then conveys all her estate, real and personal, to Henry Cruger, “in trust for her; and upon her marriage, to the use of such #persons and uses, and

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subject to such provisions as she, with the concurrence of her husband, should by deed, or by will, without his consent, give, limit, direct and appoint. In default of such directions, &c. then in trust, to permit her to hold and enjoy the same, and receive and take the rents, issues and profits; and that her receipts shall alone be sufficient discharges from time to time; to the end, that the same shall not be subject to the control, debts, intermeddlings or engagements of her husband, but shall be to her only use, benefit and disposal.” Considering it as a question of construction and intention merely independent of the adjudged cases, I am of opinion, that the fair and natural import of the deed is, that she intended so to modify the marriage contract, as to retain the entire right of property in all her estate, real and personal, through the intervention of her trustee; and that she should, also, retain the sole, entire, and exclusive right of using and disposing of it, as if she were to remain a feme sole.

We must set out in the argument, with the consideration, that she alone was absolute owner of all the property, and had a perfect right to dispose of it as she pleased. And the question then is, How far, if at all, did she devest herself of the estate, or of her disposing power over it, by the deed of settlement ? In my judgment, it would require plain and expres' words to authorize the conclusion, that she meant to lock uj her property, or to tie her own hands in the use of it, or t > restrict herself in the mode of disposing of it. The specification that she might dispose of it by deed, or by will, affords no necessary implication, that she might not do it in any other mode common to every proprietor. The specification, ‘ by deed,” was probably made with a view to her real estate only, and may be deemed to have been inserted at the instance of the husband; because it contains, perhaps, an implied stipulation, that she should not execute a deed without “ his concurrence.” And the specification, “by will,” was inserted to remove all doubt as to her right to dispose of her property in that mode, “ without her husband’s consent.” If the terms of the instrument imposed any restriction on her disposing power it was in favor of her husband, merely, to wit, that she should do it by deed, with *the concurrence of her husband; but if it be considered as a stipulation in his favor only, then it follows, that he may waive it, at his pleasure ; which he has done.

That she meant no more than to deprive her husband of his marital rights, in regard to her property, I think is evident from the very appropriate words in which she has expressly declared her intention ; to wit, “ to the end, that the same (her property) should not be subject to the control, debts, inter-meddlings, or engagements of her husband; but should he to her only use, benefit, and disposal.” She xvas a widow, without children, and at a time of life which forbade the prospect of her having any ; living in a fashionable style, with a handsome

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fortune, and knowing that her intended husband had little or no property ; and it would, indeed, have been very extraordinary, if she had designed to limit herself in the use and enjoyment, or in the mode of disposing of her own property ; and, least of all, ought we to presume, that she meant to restrict herself, as to the measure or the manner of her bounty, towards the man who was to become the partner of her joys and her sorrows. In plain truth, she meant that he should be put upon his good behavior ; and that her liberality and confidence should be regulated by his merits as a husband.

My conclusion, therefore, is, that the/w.s disponendi, retained by Mrs. Jaques over her separate estate, by virtue of the deed of settlement, was absolute and entire ; and that she had a right, and was competent, not only to dispose of that property for her own use and pleasure, but to supply the wants of her husband from that fund, and to give him such parts of it as she chose, in the same manner as she might have done, if he had not been her husband. With this difference only, that, as between husband and wife, courts will scrutinize the transaction with a jealous eye, in order to protect the wife against undue influence. And here, with great deference to his honor the chancellor, and to Sir R. P. Arden, Lord Loughborough, and Lord Eldon, I cannot forbear to remark, that they appear to lay more stress on the node of appointment by the wife, than a due regard to her security demands. It is difficult for me to perceive why the undue influence of the husband may not be as easily %nd as successfully exerted, by inducing the wife to sign a deed, as in procuring parol gifts or appropriations by her. For it must be remembered, that such a deed of appointment by a feme covert of her separate estate, requires no judicial examination as to her freedom of will.

From the evidence as to the life and conduct of the appellant, John I). Jaques, in the character of a husband, I think it due to him to say, that he sustained that character in a creditable manner. His conduct towards his wife appears to have been kind and faithful; and, in the charge and management of her property, so far as it naturally devolved upon him as her agent, he conducted her affairs with prudence and discretion. His neighbors and domestics have been called to disclose his most unguarded words and actions, in relation to his wife and her property ; and few men, indeed, could bear such an inquisition as he has been subjected to, with less disparagement. From the charge of prodigality, he stands perfectly acquitted ; the allegation of embezzlement is not proved, and I see not the slightest evidence of coercion, restraint, or undue influence by him over the disposing power of his wife. The case shows, that she lived after the marriage as she had been accustomed to do before, in a style corresponding to her fortune ; that little more than the income of her estate was exhausted, by all her expenses and liberality. She died without issue, and devised

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one third of her estate to her husband, one third to distant relatives, and one third to her church. This final distribution of her bounty, while it evinces her gratitude and affection for her husband, also shows the independent exercise of her disposing power. The important fact, that she retained the set-dement deed in her own possession, without ever complaining to her trustee, or claiming any protection from him under it, although he constantly resided in her neighborhood, is strong evidence of the propriety of her husband’s conduct, and of her assent to his acts in relation to her property. She seems to have treated the deed of settlement as a weapon or a shield, which she kept in reserve, but which, happily, she never found occasion to use.

⅝1 am, accordingly, of opinion, that there is no just distinction between the income of her estate, or the interest on her securities, and the estate or principal from which that income and interest arose, in regard to her power of disposal. Being mistress of her own fortune, she had as perfect a right to give it to her husband, or to the church, by a voluntary act in her lifetime, as to do it by her will. As to the mode, she was subject to the general law for transferring property.

In regard to that part of the decree which relates to the lots of ground bound by the mortgage and judgment which the wife held against Christian M. Heyl, the answer of the appellant avers, that those securities were placed in his hands by his wife, with full knowledge of the prior encumbrances which had been purchased up by him; that she desired him to do the best he could, and to apply the proceeds, both principal and interest, towards family expenses, and the repairs of her estate; that, accordingly, upon the foreclosure and sale, he purchased in the mortgaged premises, and took a deed to himself, discounting the price from the sum due on the securities; and that he advanced his own money to an equal amount, in lieu thereof, toward the support of the family, pursuant to his wife’s directions.

Robert Jaques, a witness for the appellant, John D. Jaques, confirms that allegation ; and he further testifies, that during the last illness of Mrs. Jaques, he was requested by her to draw a deed of trust, disposing of her real estate, “on which occasion she told him, that the Heyl property, meaning the lots covered by the mortgage and judgment aforesaid, and which had been bought in by John D. Jaques under the foreclosure, and under the arrangement made on that occasion, belonged to her husband, into whose hands she had put all her claims against said Heyl; and that the proceeds thereof had been expended by him in support of her family, and in expenses relating to her property; and that she had nothing to do with the aforesaid property of said Heyl” Margaret Stuart’s testimony confirms that of Robert Jaques, as to all those facts; and these admissions of Mrs. Jaques, of the title

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of her husband to those lots, and *that he had accounted to ^er satisfaction for the price of them, is evidence that she had authorized and ratified his acts, and rebuts the equity now claimed as to those lots.

I think the evidence is insufficient to show, that the renewal hhe lease for the lot in Murray street, in the name of John I). Jaques, was procured by the money of his wife. The fact is denied, and the proof rests on vague surmise. But if it were so, then the acknowledgments of Mrs. Jaques are evidence, that he had accounted to her satisfaction. The subsequent sale of that leasehold estate by John D. to Robert Jaques, therefore, stands unimpeached, and subject to no trust.

There is no doubt of the rule, that a trustee, without the previous consent of his cestui que trust, cannot speculate for his own benefit, by purchasing with the trust funds. Such purchases enure to the benefit of the cestui que trust. But this means no more than that the cestui que trust may, at his election, either affirm such speculating purchase, and charge his trustee with the money so expended, or he may insist on holding the land for his own benefit, and credit his trustee for the price paid.

A view of the whole evidence in this case, I think, warrants the conclusion, either that Mrs. Jaques, when she placed those securities in the hands of her husband for collection, agreed that he might purchase in the mortgaged lots for his own bene fit, accounting to her in family expenses for the price ; or that subsequent to the purchase by the husband, as her agent, and with a full knowledge of the transaction, she elected to affirm the sale to her husband, for his own benefit, and thereby waived her claim to the lots as cestui que trust. Upon either supposition, the equity now claimed in regard to those lots is rebutted.

If a married woman be permitted under a settlement to act as a feme sole, in regard to her property, it is perfectly reasonable that her acts, declarations and confessions, freely made, should be allowed to have the same effect in regard to the rights and interests of others, as if she were in reality a feme sole. Here it is proved by two witnesses, that Mrs. Jaques delivered the bond and mortgage, &c. to her husband, *and told him to do the best he could with them, and to apply the avails towards the support of the family, and in repairs and improvements of her estate; and that she afterwards pointedly acknowledged that he had foreclosed the mortgage, and had purchased in the lots for himself; and that he had accounted to her for the avails of those securities in a satisfactory manner ; that the lots belonged to her husband, and she had no claim to them. Now, suppose they had not been husband and wife, and the same facts had occurred between them, could there be a doubt that she, and all persons claiming under her, would be barred of any claim to those lots ?

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Several witnesses swear, that she repeatedly declared that her household establishment, and all her family expenses, were supported and paid out of her estate, according to the mutual understanding between herself and her husband previous to their marriage. And this arrangement, so probable and so reasonable, accords with all her subsequent life and conduct. It is true, that such an agreement was revocable at her pleasure ; and if she had insisted upon her strict legal rights, her husband was bound to maintain her, at his own expense, but certainly not in such a style as she chose, and had been accustomed to.

His honor the chancellor says, “ The defendant ought to be precluded by his deed of settlement, from claiming any part of his wife’s estate, founded on any parol agreement or gift of the wife, and he sets up no otherand “ to allow the husband to set up contemporary, or subsequent parol agreements, confessions, or gifts, would be allowing him to contradict and defeat the settlement.” This was a proper inference and deduction from the rule of equity and principle of construction adopted by the chancellor ; to wit, that “ her disposition of the property was to be by deed, in concurrence with her husband, or by will without it; and that her receipts were to be alone sufficient discharges, from time to time, of her title to the rents, issues, and profits.” But constrained, as I am, to differ in judgment from his honor the chancellor, in that cardinal principle and *rule of construction, the natural consequences of his position on that point do not stand in my way. [f, as I contend, the wife had an unlimited disposing power over her separate estate, with the single qualification that, perhaps, she could not convey her interest in her lands without the concurrence of her husband, then it follows, that there is no repugnance between her “ parol agreements, confessions, or gifts,” and the deed of settlement; nor do they “ contradict or defeat ” that settlement. The appellants claim under her as a feme sole; and all the admissions, parol agreements, and gifts, which she was competent to make, are obligatory upon them. She had power to consent, by parol, that her husband should not only receive her income, but also collect her debts; and when the moneys were in his hands, she had an equal right to direct, by parol, the application of them to the support of the family ; to the payment of debts due from her ; or she might, in the same manner, give the money to him or to whom she pleased; and after such application was actually made, those acts were irrevocably binding on her, and all claiming under her. She had as perfect a right to give money to her husband, as to give it “ for building a church at Rahway.” Such gifts were perfected by delivery only ; and her admission that she made such gifts or appropriations, is as valid in the one case as in the other.

My opinion, therefore, is, that the decree ought to be reversed.

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This being the opinion of a majority of the court, (Austin, Notes, and Swart, Senators, dissenting,) it was thereupon “ ordered, adjcdged and decreed that the decretal order made by his honor the chancellor, in this cause, on the 27th day of June, 1815, be reversed, so far as the same declares and £iecrees that the freehold estate, situate adjoining to Warren street in the city of New- York, mentioned in the pleadings in this cause, the title to which stands in the name of the said John D. Jaques, which title he acquired from a master in chancery, in consequence of a sale thereof under a decretal order of the said Court of *Chancery, founded on a mortgage thereof, given by one Christian M. Ilcyl, in the pleadings for that purpose mentioned ; and, also, the leasehold estate situate adjoining Murray street, in the city of New- York, the title to which stands in the name of the said Robert Jaques, and which title was acquired from the said John D. Jaques, by assignment, as in the pleadings mentioned, respectively, of right belonged to Mary, late wife of the said John D. Jaques. at her death; and that the said last-mentioned estates of right belong and are distributable, according to a certain deed in the pleadings mentioned, to the said Robert Jaques, on the 22d of September 1812, and the last will and testament of the said Mary; and that, for the purpose of such distribution of the aforesaid estates respectively among the respondents and the appellant, John D. Jaques, according to their respective rights, under the said deed, to the said Robert Jaques, of the 12th of September, 1812, and the said last will and testament of the said Mary, late the wife of the said John D. Jaques, the moneys arising from the sale thereof, under and by virtue of the said decretal order, and deposited with the assistant register of the said Court of Chancery, should remain with him, to abide the further order of the said Court of Chancery relating thereto: And this court doth declare and adjudge that the said moneys of right belong to the said John D. Jaques, and do decree and order that the same be forthwith paid to him as his own proper moneys: And it is further decreed, declared and adjudged that the said John D. Jaques is not, and ought not to be, accountable to the executors of the said Mary Jaques, for any part of the debts which were due, by the said Christian M. Heyl, to the said Mary, as in the pleadings mentioned: And it is further ordered, adjudged and decreed that the said decretal order be reversed, so far as the same orders and decrees the said John D. Jaques to account with the respondents for the rents and profits of the said real estate, adjoining Warren street, from the 1st of March, 1810, the time when he took a title for the same from a master in chancery, as mentioned in the pleadings in this cause ; And so far as the same orders and decrees the said *John I). Jaques and Robert Jaques to account, respectively, for the rents and profits of the said leasehold estate situate adjoining Murray street, standing in the name of

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the defendant Robert Jaques, from the day last-mentioned, ae-cording to the time they shall respectively have been in possession or in the receipt of the rents thereof; and also so far as the said decretal order orders and decrees that in relation to the said freehold and leasehold estates adjoining Warren street and Murray street, the said John D. Jaques and Robert Jaques should be allowed, respectively, for all allowances by them made thereon, which are of a nature to be permanently useful, or increase the value thereof; and also so far as the said de-cretal-order decrees and orders that the said John D. Jaques shall not have any allowance for expenditures in the maintenance of the said Mary, her family or equipage, during the time she was the wife of the said John D. Jaques; and also so far as the same directs, that in taking the account therein directed of the personal estate of the said Mary, the said John D. Jaques shall not be charged with sums received as interest or dividends arising from the said Mary’s personal estate, during her life, unless where the said John D. Jaques shall show himself entitled thereto, as hereinafter directed and decreed. But that in taking the said account hereafter to be taken, the said John D. Jaques be charged with all the personal estate, as well principal sums as interest moneys and dividends received by him from her personal estate.

And it is further ordered, adjudged and decreed that the decretal order made in this cause, by the said Court of Chancery, on the 5th day of October, 1815, be reversed, in all its parts and directions, except so far as the same Orders, adjudges and decrees that the said leasehold premises adjoining Murray street, in the city of New-York, should not be sold as in the first-mentioned decretal order directed, which said so excepted direction is hereby affirmed. And it is further ordered, adjudged and decreed that the said first-mentioned decretal order of the 27th day of June, in the year 1815, be varied and modified, so far as that the said John D. Jaques may be obliged to account for #the rents and profits of the real estate situate at the corner of Broadway and Reed street, only according to the value of the same to him, as a personal residence, under the circumstances, that he, and the said Robert Jaques, were restrained by an injunction in this cause from letting the same ; and that the same must have remained unoccupied, if he had not occupied the same ; And that, in taking the account of the personal estate of the said Mary, the said John D. Jaques shall not be charged with the moneys received by him for the leasehold estate, in Warren street, sold under the mortgage of the said Christian M. JJeyl, and purchased by or for William Wilmer-ding, in the pleadings in this cause mentioned; and the said John D. Jaques shall be allowed for all moneys over and above the said debts, which were due from the said Christian M. Heyl, to the said Mary, and expended by them at the desire of the said Mary, or for necessary reparations to any part of her

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estate, or for the support and maintenance of the said Mary, her family establishment, or equipage, during the time she was the wife of the said John D. Jaques ; and also, for all moneys ■which, from the facts or circumstances connected with the same, it shall appear, and be considered, by the said Court of Chancery, that the said Mary intended as a donation from her to him, the said John D. Jaques. And, it is further okdered, adjudged and decreed that the said decretal order of the 27th day of June, 1815, be affirmed, as to all matters not herein and hereby reversed or varied : And it is further ordered, adjudged and decreed that the accounts heretofore taken in this cause be rectified and varied, both as to the principal and interest, conformably to this decree: and that, in all other respects, the same stand confirmed; but that, for so varying and rectifying the said accounts, the parties in this cause shall respectively be at liberty to charge and discharge, as is usual in taking of accounts before a master ; and that the master to whom the accounts shall be referred, shall have the powers for that purpose specified and set forth in the said first-mentioned decretal order of the 27th day of June, 1815.

*And it is further ordered, adjudged and decreed that the final decree made by the Court of Chancery, on the 15th day of June, 1818, be reversed, and that the question of costs in the said Court of Chancery, and all further directions as to the final decree in this cause, be referred back to the said Court of Chancery. And it is further ordered, adjudged and decreed that this cause be remitted to the Court of Chancery, to the end that the said court may act therein as may be just and proper.

Decree of reversal accordingly.^[1]

(a) (a) In this case, (3 Johns. Ck. Rep. 77.) the chancellor went into a full examination of the decisions of the English chancery, on the question, how far the wife was to be considered as a feme sole, in regard to her separate property settled to her separate use; and he concluded that the English decisions were so floating and contradictory, as to leave the court here at liberty to adopt the true principles of these settlements, which he stated to be that the wife, as to her separate property, is to be deemed a feme sole sub modo only, or to the extent of the power clearly given by the settlement. That her incapacity is general, and the exception was to be taken strictly, and to be shown in every case, because it is against the general policy and immemorial doctrine of the law, that the intention was to govern, and to be collected from the terms of the instrument; and her power of disposition must be exercised according to the mode prescribed in the deed or will, under which she becomes entitled to the property. That, therefore, when she has a power of appointment by will, she cannot appoint by deed ; nor, when she is empowered to appoint by deed, is the giving a bond,7wtc, or parol promise, without reference to the property, or making a parol gift, such an appointment; nor, when it is said, in the settlement, that she is to receive from the trustee the income of her property, as it may, from time to time, become due by anticipalion, dispose at once of the whole income. But the decision of the Court of Errors, in this case, does not confirm these restrictions, further than they are specified, in express and positive terms in the deed of settlement. 1 Johns. Dig. 260. See also Udall v. Kenney 3 Cowen's Rep. 590.

Cases cited

Murray v. Gouverneur 2 Johns. Cas. 438 N.Y. Sup. Ct. p. 436