Ladd ex rel. Montgomery v. Ladd

delivered the opinion of the court.

The important legal questions arising upon this record, and on which the decision of the cause must depend, appear to be these: —

1st. The nature and extent of the estate embraced within the power reserved to the feme by the marriage settlement; viz., whether that power comprised as well real as personal estate, or was limited to interest, rents, and profits merely, and by name.

2d. The mode of appointment indicated by the marriage contract, and whether this mode has been shown to have been either strictly or substantially and fairly complied with in the requisites of signing, sealing, and attestation. ■

Before proceeding to a particular examination of the questions above stated, it may be proper to premise some observations with respect to the charges in the bill; and first, of undue marital influence, and secondly, of fraud as means employed in accomplishing the wrongs to which the ■ complainant alleges she has been subjected, and against which she has sought relief. With regard to the first of these alleged means, it must be remarked, that no certain or specific mode or act, neither coercion, allurement, nor wilful misrepresentation or falsehood, is charged, by which the free will, the judgment, or the inclination of the complainant has been restrained or misled. Every feme covert is presumed, under a settlement like the one in the present case, to be to some extent a free agent; and she must or ought to be presumed to entertain dispositions of kindness towards her husband. But if, in the indulgence of such dispositions, she should make an unlucky or unprofitable appointment, it would be carrying the principle of protection to ■ail extreme destructive of every conception of free agency, to determine that these untoward results were in themselves proofs of' undue marital influence. The husband does not answer the bill in this case, and there is no direct evidence introduced to sustain this charge as to him; but some of the facts in the testimony go very far to contradict this allegation*, — as', for instance, the conduct of the feme, manifested and repeated

We will how particularly consider the nature and extent of the estate reserved to the complainant by the marriage settlement, and which was embraced within her power to appoint, by a just construction of that instrument. It is alleged in the bill, that this estate was limited to interest, as synonymous with income, rents, and profits, eo nomine, and did not extend to the fee of the real estate, nor to the principal of the stock settled to the uses of • the marriage. By every sound rule of construction, an instrument should be interpreted by the context, so as if possible to give a sensible meaning and effect to all its provisions ; and so as to avoid rendering portions of it contradictory and inoperative, by giving effect to some clause's to the exclusion of others. Expounded by this rule, let us see what will be the character of the estate here limited to the wife, and what the extent of her power to appoint in relation thereto.

" The deed of settlement begins by reciting, “ that, whereas the said Harriet Y. Nicoll is now possessed of a considerable real and personal estate, which it has been agreed should be settled to her sole and separate use, with power to dispose of the same by appointment or devise.” The deed then sets forth the estate, real and personal, conveyed by it, and enumerates the trusts created thereby, and amongst them the one involved in this controversy^ and differently interpreted by the parties thereto, as follows, viz.: that the trustee “ shall and do permit the said Harriet Y. Nicoll, the intended wife, to have, receive, take, and enjoy all the interest, rents, and profits of the property hereby conveyed, to and for her own use and benefit; or to the use of such person or persons, and in such parts and proportions, as she, the said Harriet Y. Nicoll, shall from time to time during the coverture, by writing, appoint, &c., or to such person or

Let it be here remarked, that the object of the deed is declared to be the settlement of the whole of the estate, real and personal, upon the married woman, with power to dispose of the whole of it, either by appointment or devise. It will not be denied that this investment of, and authority over, the whole estate, so explicitly declared, might not have been modified or even revoked by subsequent provisions of the same instrument; 'but certainly they should be made to yield only to declarations equally explicit, or to such as are absolutely contradictory to and irreconcilable with them. Can it be correctly affirmed of the subsequent and specific designation of the trusts in this deed, that they are either plainly contradictory, or irreconcilable with the purposes of the settlement previously and so explicitly declared ? May not the term interest, contained in that enumeration, considered in its relative collocation to the terms rents and profits, be understood as equivalent with the word estate, especially when the terms rents and profits may be correctly taken to cover interest understood as mere revenue, and still more especially when we keep in view the previous purpose set forth in the deed, — that of settling on the feme, and subjecting to her disposition by deed or will, the whole of her estate, real and personal ? Certainly there is nothing in the term interest incompatible with' the meaning of the terms estate or property, for in an ordinary as well as in a technical acceptation, interest may imply both estate and property. But there is another illustration of this matter which would seem to put it beyond farther doubt, that the power of appointment in question cannot by any rational construction be restricted to interest understood as revenue or money, or to rents and profits eis no-minibus. Let it be again remarked, that, by the preceding part of the marriage coutract, all the estate, real and personal, was settled to the feme, with power to appoint the whole, without exception, by deed or will. Then, after the words which it is insisted for the complainant restricted her power, we have, at the conclusion of the deed, these words: — “ and in default of such appointment or devise, then the estate and premises aforesaid to go to those who may be entitled thereto by legal distribution.” Now the construction which would restrict her power -to interest, rents, and profits, would seem as if intended to make' the fee or inheritance depéndent upon the contingency of an appointment of these mere chattel interests by the feme; — if

It remains next to be considered whether the mode of appointment prescribed or indicated by the marriage contract, whether the power be construed in an extended or restricted . sense, has been strictly or fairly and substantially complied with. On behalf of the appellant it is insisted, that, in the-deed of the 9th day of October, 1827, from John H. Ladd, the trustee in the marriage settlement, and Harriet V. Ladd, to John Hooff,. as trustee for the Farmers’ Bank of Alexandria, regarding that deed as an appointment by Mrs. Ladd, under a competent power, still in its execution there has been such a departure from the mode prescribed for the exercise of the power by Mrs. Ladd, as renders her act wholly inoperative and void. The marriage contract, after securing the prop

Upon this state of facts, it has been contended that the execution of the power was defective and null, inasmuch as the power could ba executed only by an instrument under the hand and seal of the married woman, and that the attestation of the witnesses shows simply a sealing and delivery of the deed of appointment, and shows nothing in relation to the signing by the parties. Some objection was made in the argument, founded upon the relative position of the names of the attesting witnesses, as tending, to produce uncertainty as to which of the parties the witnesses meant to testify; but this objection, whether or not under other circumstances it might have been of any importance, was obviated by an exhibition in court of the original deed, which it. was admitted was the document before the court below in the trial of this cause. In considering this objection -to the defective attestation of the instrument of appointment, it is to be observed that the complainant, by her bill, does not impeach the deed on any such ground; on the contrary, she expressly alleges that this deed was signed and executed by all the parties thereto, and witnessed by the four persons whose names appear thereon. • Such being the state of facts, it may very properly be questioned whether a party admitting and averring the execution of an instrument, and impeaching only its fairness or its legal operation, exhibiting nothing in the state

After Wright v. Wakeford, followed the cases of Doe ex dem. Mansfield v. Peach, 2 Maule & Selwyn, 576; Wright v. Barlow, 3 Maule & Selwyn, 512; Doe ex dem. Hotchkiss v. Pearce, 6 Taunton, 402. These cases rest upon Wright v. Wakeford, and some, if not all, of them refer to it expressly as their foundation. But, even contemporaneously with tire cases just mentioned, it will be perceived that the courts have in some instances sought to free themselves from these literal trammels of Wright, v. Wakeford, as too narrow to comprise the principles of justice and common sense; for as early as 7 Taunton, 355, in the case of Moodie v. Reed, which was sent from the Chancery, the will was attested in this general phrase, “ witness, &c.,” by two witnesses.' In the testimonium clause the testatrix says, “ These bequests are signed by me.” Gibbs, C. J., said that this was clearly a good attestation of the signing. Still later, it has been ruled in several cases where the power required a will signed and published in presence of three witnesses, that the attestation-was good expressing the will to have been signed and delivered. .The

But whatever doubt may heretofore have overhung and perplexed this matter, that doubt, so far as the reasonings óf the English bench should shed light upon the judicial mind of our country, ought to be cleared away. This effect, we think, should be produced by the arguments in the House of Lords of the assembled1 judges in the case of Burdett v. Spilsbury, reported in 6 Manning & Granger, beginning at p. 386. In this case, presenting, as of course, an exhibition of great ability and learning, the execution and attestation of appointments under powers are the subjects considered. The cases from Wright v. Wakeford down, involving any important principle, are reviewed, and these subjects placed upon the basis of common sense. It is true that the facts in the case of Burdett v. Spilsbury were not precisely those of Wright v. Wakeford, the attestation clause in the latter being special and that in the former case not special; yet in the examination of the latter case, and of those which have followed and been rested upon it, their doctrines are discussed and by a majority of the judges disapproved, several of the judges who conceived themselves constrained to support Wright v. Wakeford, upon the maxim stare decisis, expressing their regret at the obligation supposed to be binding upon them, and declaring, that, were the case res integra, they should certainly reject its doctrines. The extended views of the judges in Burdett v. Spilsbury canuot be given consistently with the limits of this opinion, yet some of their illustrations of the principles they maintain may properly be adverted to. And it will be perceived that the substance and meaning of those principles are comprised in the following positions: —

1st. That the terms and modes' prescribed in settlements .for the execution of powers should be followed in reason and substance, so as to insure the purposes and objects contemplated by such settlements, and so as to prevent them from being sacrificed to mere literal severity of construction.

2d. That the memorandum of attestation to a deed or will, whether that memorandum be general or special, is not conclusive as to the ceremony of the execution of the instrument to which such memorandum is annexed, but may be explained by the testimony of the witnesses themselves, or by reference to the testimonium clause of the instrument, as showing the facts and circumstances set forth in that clause, and which the witnesses were called on to attest.

In the same case, Williams, Justice, says, — “Now the language of the power (as has been already mentioned) is, by her last will and testament, to ■ be by her signed, sealed, and published in the presence of, and attested by, three or more credible witnesses. All this is found to have been done, and we are now to see whether, by ordinary and fair construction, neither forcing any interpretation in favor of it, nor wholly excluding any .reasonable inference for the mere purpose of defeating what we know to have been rightly done, the requisites appear to have been complied with. And here it seems very important to attend particularly to the document itself. The will first contains the whole testamentary part; every disposition of the property is first fully made, and the will is therefore as to that, its principal object, complete. The rest regards the manner of

In speaking of Wright v. Wakeford, Gurney, Baron, remarks,

The reasoning of Tindal, C. J.,\in Burdett v. Spilsbury, applies with great force and clearness to the question before us. “ If,” says this judge, “ the word ‘ witness ’ is taken abstractedly by itself, as constituting the whole of the attestation, I can see no objection to holding that the three persons whose names are subjoined to it must be taken to be witnesses to all that was actually done at the time, which is found by the special verdict to be all that was required to be done. Or, if the word witness is to be construed with reference to the statement immediately preceding it at the end of the will, then the word witness necessarily implies that the testatrix did in their presence declare the instrument to be her will, andthat she did in their presence put her hand and seal thereto, that is, in the language of the settlement, that she signed, sealed, and published it in the presence of these three witnesses. To this construction an objection was taken at your Lordship’s bar, which had also been relied upon by some of the learned judges who delivered their opinions before me; viz. that it proceeds upon the supposition, that the whole instrument may legally be read tosether to explain the meaning of the word witness, and that it supposes the witnesses are conusant of the contents of the instrument, neither of which can be supposed. But l cannot feel the force of this objection. There has been, from the earliest time at which deeds were known, a marked and acknowledged distinction between the operative part of the deed itself, and the testimonium clause (as it is called) at the end of the deed. The essential part of the deed is that part, and that only, which contains the grant. The clause at the end is introduced, not as constituting any part of the deed, but merely tv preserve, the evidence of the due execution o f it. Admitting, therefore, the deed itself is matter which maybe held to be

A quotation from the opinion of Lord Campbell will close these extracts from the opinions in Burdett v. Spilsbury, protracted, perhaps, beyond what even this interesting case will warrant. His Lordship says, p. 467, — “ My Lords,- in this case the only question is, whether the will was attested by three credible witnesses.” He proceeds, p. 468, — “ My Lords, independéntly of authority, I cannot doubt that for a moment. The only objection that can be made is this, that the will upon the face of it does not contain any process verbal or history of the transaction. But the power imposes no such condition, — it does not say a will, signed, sealed, and published in the presence of three witnesses and attested by them, and a will containing a history of the solemnity, — there are no such words in the power.” Again, p. 469, — “ If it weremecessary, my Lords, I think the testimonium clause here might be resorted to, both upon principle and authority.” These reasonings of the English judges, going to show that, upon principle, and independently of recent statutory provisions, the memorandum of attestation, so far from being conclusive upon the facts of signing, sealing, and publishing or delivering an instrument, may itself be controlled, either by the examination of the witnesses themselves, or by reference to the testimonium clause of such instruments, are fully sustained, and even more than sustained, by the authority of the supreme' court of that State from whose jurisprudence” and policy this controversy might be supposed in some degree to take its complexion. If, therefore, the most express’adjudication of the Court of Appeals of Virginia can govern this case, it seems at once disembarrassed of the objections alleged to the execution of the power created by the marriage contract.

The recent decision in the case of Pollock and Wife v. Glassel, reported in 2 Grattan, 439, would seem to be decisive of the questions now before us, that case having clearly ruled as the law of Virginia with regard to a deed, that, although the distinctive character of the instrument is to be determined by its intrinsic evidence, the question is still open whether it be the deed of the party, and that must be decided by evidence aliunde. If by plea of non est factum, or other proper denial, the fact that the paper was sealed by the party be put in issue, then1 it must be proved by competent and satisfactory testimony. In Virginia, by long usage, which has received the sanction of a statute, a scroll is used by way of a seal. The decisions have required that the substitution of the scroll for a

An objection has been made to the sale under the deed of trust, based upon the fact, that the portion of the property actually sold did not equal in value the whole amount of the debt due to the bank, which it is insisted should have been the case, according to the proviso in that deed. We do not see the force of this objection, inasmuch as, by the express terms of the deed, .authority was given the trustee or the bank to sell the property in separate parcels, as either might deem it necessary or advisable; and it would have been impracticable before an experiment to ascertain a priori how much of the property would be requisite for the satisfaction of the debt, and thus a literal adherence to the proviso would lead either to the preventing a sale altogether, or to the sacrifice of the whole estate, whether there should have been a necessity for it or not. Moreover, the sale by parcel in this case, was selected upon a calculation of advantage to the feme, and with her express approbation, with the view of saving to her, if practicable, a portion of the property.

Upon full consideration of the facts and the law of this case, the court are of the opinion, that the marriage contract gave power to the feme covert to appoint the entire estate and property embraced within it; that the. provisions and conditions of that contract have been complied with in the execution of the power thereby created and reserved; that therefore the decree of the Circuit Court, dismissing the bill of the appellant, the complainant below, ought to be affirmed, and it is hereby accordingly affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States' for the District of Columbia, holden in and for the County of Alexandria, and was argued by counsel. On consideration' whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.