
    Columbia,
    Nov. 1849.
    
      Henry H. Hill, John Bates et al. v. Jonathan M. Hill and wife et al.
    
    Where there is a general decree for a settlement, during the life of a wife, the equity of the wife is always intended to embrace the interests of her children, unless by the terms of the decree the children are excluded; and if the wife die after such a decree, the Court will execute it for the benefit of the children.
    1 Strob. Eq. 10.
    
      Before Dargakt, Ch. at Edgefield, June, 1849.
    Dargan, Ch. — This case was heard on report and exceptions. It has heretofore been before the Circuit and Appeal Courts on other issues than those now made. The questions now presented relate, exclusively, to a portion of the share of Lucinda Hill in the estates for the distribution and settlement of which these proceedings were instituted. In a former stage of die case, it was decided by the appellate jurisdiction of this Court, that on a part of the estate of Lucinda, amounting to some $12000, the marital rights of her husband, Jonathan Hill, had attached. This amount he had got into possession previous to the institution of this suit, and it has been dissipated by him. As to the remainder of the wife’s estate, (the subject of the present controversy,) it was held that the marital rights had not attached. In regard to this portion of her estate, (amounting to about $8,000, or one-third of the whole,) the Court, at June Term, 1843, made an order that it be referred to the Commissioner to report suitable terms of settlement upon the wife, Lucinda Hill. See this order in Hill v. Hill, where the case is reported. It is in the following form, and occurs in the decree of the Chancellor :
    “ Recurring to the 7th exception of the plaintiff, it was stated that Jonathan Hill had abandoned his wife, and having run through all the property in his possession, had left her in destitute circumstances; and an application was made for a settlement upon her of what may be recovered in this case. It is ordered that it be referred to the Commissioner to enquire into the truth of these facts, and report the facts which he may ascertain by evidence; and that he report what would be a suitable settlement to be decreed in the premises, the name of a proper trustee, and the terms and form of a decree
    
    The case was carried before the Court of Appeals, though not on this point, at December Term, 1844, and was remanded to the Circuit Court, with leave for the defendant to file a cross bill, making new parties. The case was again heard before the Circuit Court, and a decree delivered. Both of the circuit decrees were in review before the Court of Appeals, at December Term, 1846, by way of appeal. And among other things, it Avas ordered that the Commissioner “ enquire and report wdiat provision for Mrs. Lucinda Hill ( should be made out of her distributive share of the intestate estates of her brothers, Theodore S. Bond and Felix P. Bond.” Hill v. Hill. It is to be remarked that in neither of these orders are the children or the issue of Lucinda Hill mentioned or alluded to, in express terms, as being intended to be embraced within the provisions of the settlement.
    At June Term, 1847, the Commissioner filed a report on the matter referred to him. The filing of this report bears date the 12th June, 1847, but it was not submitted to the Court, nor was there any judicial action ever taken upon this report. Lucinda Hill was living. She died the 7th October, 1847. Her four children survived her; are still living, and are parties to these proceedings. • Rhydonia, one of the daughters, has intermarried with one James Goodwin, with whom she .resides in Arkansas. The other children, yet infants, reside Avith their father in Texas.
    In the report, filed 12th June, 1847, the Commissioner states that Lucinda Hill is a “ lunatic, and has been abandoned by her husband, Avithout any provision for her support. There was testimony of unkind and improper conduct, on the part of Jonathan Hill towards his wife, before he abandoned her. Jonathan Hill received with his wife a considerable property, amounting to about $5,300 and four negroes ; besides the amount applied by the decree of the Court in this case, to the payment of his debts, due to his sureties.” He says “ it was also proved that the said Jonathan Hill owed debts to a large amount in Alabama, besides the debts which it appears, by the evidence in this case, he owes in this State.” The Commissioner, then, recommends “ that the whole amount that may be found due to Jonathan Hill and wife, in right of the Avife, and as to which his marital rights have not attached, be settled and secured to her sole and separate use for life; and after her death to her lawful lineal descendants ; and that Henry Hill, her committee, be appointed her trustee.” To this report no exceptions have ever been filed. The solicitor for the sureties and creditois of Jonathan Hill, (who are parties before the Court,) on the trial before me objected, but did not except to the. report. He stated that he had no notice of the reference held by the Commissioner, as to the terms of the settlement, and assigned this as a reason that no exceptions had been filed. I referred it, during the progress of the trial, to the Commissioner to report the facts. He reported that at June Term, 1847, having been urged to make his report as to the terms of the settlement, in pursuance of the previous orders during the term, from evidence previously taken by him, when all the solicitors were present, he made up his report: that he heard no additional testimony; that the solicitor for Lucinda made suggestions to ;him, without there being any formal reference or argument, ’as to the terms of the settlement; that the solicitor for the sureties of Jonathan Hill had no notice that he was, then, about to make up his report, and that he heard no argument or suggestions from him. The Commisioner further reported that within a day or two after the filing of the report, and during the term, he informed the solicitors that the report as to the terms of the settlement, was on the file. Lucinda Hill having died on the 7th October, 1847, (as before stated,) her children have filed a supplemental bill, in which they have asserted their claim to the benefit of the settlement.— They set up a claim to the same benefits under the report, and the previous orders, (under the authority of which the report was made,) as if the settlement had been consummated by a final decree of the Court, in the life of their mother. On hearing the supplemental bill, in which the children set up their claim, the subject was again referred to the Commissioner, and by a report filed 9th June, 1848, he says that in pursuance of the orders of reference, directing him to inquire and report the proper amount to be settled and secured to the four children of Mrs. Lucinda Hill, who (meaning the said Lucinda,) has died since the last term of the Court, &c. “ I beg leave to report that Lucinda Hill having died since the last term of the Court, leaving as her next of kin her husband, Jonathan Hill, and four children, Rhydonia, wife of James Goodwin, James Hill, Amanda Hill, and Henrietta Hill,” he recommends, instead of a settlement, a distribution, according to the statute of distributions, in cases of intestacy.
    To this report, the children of Lucinda Hill have filed exceptions, one of which is, “ that the Commissioner has recommended a distribution under the provisions of the Act of 1791, whereas it is submitted that the whole of the estate of their mother, upon which the marital rights had not attached under the decree of the Court, survived to and should have been settled upon the exceptants.”
    In the foregoing statement, I have mentioned all the facts that have a bearing upon the question at issue, and which will be material in elucidating the discussion which follows. Though the wife has an unquestionable right to a provision by way of settlement, out of her fortune, upon the peculiar doctrines of this Couit, it is also equally undeniable that the husband has also rights, even in her equitable estate or assets, which will not be disregarded or superceded, except under peculiar circumstances. The general rule is, that the husband has rights, more or less extended, according to circumstances, to have provision made for him in the usufruct of his wife’s separate and settled estate. If he is worthless and debauched, maltreats, abuses or abandons his wife, or if he is a bankrupt, so that he is incapable of supporting her, and his participation in the use of the estate would only operate for the benefit of creditors, this Court has the power to ex-elude, and will exclude him entirely, and will settle the whole estate to the sole and separate use of the wife, with the remainder to the children. 411 these circumstances combine against the right of the husband in the case before me. And in addition to these he had before received a considerable'amount of property belonging to his wife ; about $12000, and constituting two-thirds of her estate. After dissipating her property which he had got into his hands, he turned in the ferocity of a callous and savage heart upon her, from whom it was derived, and who had confidingly placed her person and estate in his possession. He cruelly neglected, and grossly abused, the being whom, of all others, by the laws of God and man, it was his sacred duty to cherish and protect. After, by an accumulation of insupportable wrongs, he had driven her to madness, he cast her from him as a worthless and despised thing, rifled of her attractions and her reason, without a cent for her subsistence. Leaving the State, he threw her upon the kindness and charity of friends. I have said that he .drove her to madness. Injustice to the husband, I must qualify the expression by saying that there was no direct evidence of her mental derangement having been occasioned by the misconduct and unkindness of he,r husband. But whenever I hear of brutality on the part of the husband, and lunacy on the part of the wife, I cannot but strongly suspect that, between the two facts, there is a natural connexion and sequence, as of cause and eflect. Be this as it may, whether he did or did not inflict upon his wife this greatest calamity that can befall a rational being, there is a revolting array of facts that cannot be controverted. He had dissipated the estate which she brought him.— He had misused, neglected, and abused her. She was a lunatic. In a state of lunacy and poverty, he threw her upon the world, perfectly indifferent whether under her awful affliction and. privation she obtained bread and raiment. If there ever was a case in which it would be proper for the Court, in its high discretion, to secure the wife’s estate to her and her issue, to the entire exclusion of the husband, this certainly is such a case. And if Lucinda Hill were now living, and now before me, asking for a settlement, I should, unhesitatingly and without discussion, secure by a decree, for her sole use, with remainder to her children, the whole of her remaining estate, even if it were ten times as large as it is. And perhaps the certainty that such would have been the result, may afford an explanation of the apparent neglect of the solicitor in not filing exceptions to the report.
    But this is not altogether the case that is presented. The unhappy Lucinda has sought a refuge from her sorrows and misfortunes, in the peace of the grave. And it is her chil- ' dren who now seek, through her equity, the benefit of the same provisions they would clearly have been entitled to if she had now been living. And the question is whether, under the circumstance stated, their equities survive to them, notwithstanding the death of their mother before a final decree.
    Ambl. 509.
    10 Ye. 84, 1 Mad. 550.
    As a general rule nothing can be clearer than that the equity to a settlement out of her fortune is personal to the wife. The marital rights, even in this Court, will prevail against any person but her, (Scriven v. Tapley.) And though the children or issue are always included in the benefits of the settlement, where chancery takes hold of the matter, yet without doubt, she may waive her equity, to their exclusion ; and in such case they would have no right to insist upon a settlement, (Murray v. Ld. Elibank.) They have no legal or equitable rights in their mother’s estate, more than in their father’s, except such as may be founded upon contract or the decrees of the Court, so that even if there be a preliminary order for the terms of a settlement to be proposed or reported, the wife may, at any time before the proceeding is consummated by a decree, renounce the provisions in her favor, and exclude the children. And if the wife dies before any preliminary order for a settlement, the equity of the children is gone, and cannot be asserted.
    I have said that, as a general rule, the equity is personal to the wife. I know of but two exceptions, which have been already intimated. One is, where the children have been provided for in an agreement between the husband and wife. Such a stipulation in their behalf will, after the death of the mother, be enforced by this Court according to the terms of the agreement. The second exception is, where there has been a preliminary order contemplating a settlement upon the wife and children. Here their rights are based upon the decree of the Court. And though the wife dies pending the proceedings, and before the final decree, or even a report is filed or proposals made, the Court recognizes their rights, and will perfect and consummate them, in the same manner as if their mother were still living, and as a party before the Court were prosecuting her equity.
    Thus far I consider the law as very clearly settled. The question now narrows down to a single point. It will be remembered that an order of reference was made by the Circuit Court, for the Commissioner to report suitable terms for a settlement, and that a similar order was made by the Court of Appeals. Both of these orders were made in the life time of the wife, but in neither are the children expressly provided for or named. And the difficulty (if it be one) is, whether, under these orders, in which they are not specifically or by name provided for, and a report made and filed in pursuance of the orders, in which provision is made for them, they have acquired rights which they are entitled to set up in this Court, though their mother be dead before any final decree in her or their favor. And this is the question to which I must now address myself. But before proceeding in the discussion, I will remark that. it may well be doubted whether the order of reference, made on the supplemental bill, and alluded to in the Commissioner’s report of June 9th, 1848, directing the Commissioner to inquire and report, (not whether the children were entitled to a settlement,) but “ the •proper amount to be settled and secured to the four children of Lucinda Hill,” is not a judicial recognition of their right to a settlement of some portion out of their mother’s estate, beyond what they would be entitled to under the statute of distributions. May not such an order be regarded as a decree of the Court in their favor ? But I pass on to a consideration of their claims, under the previous orders of reference, made in the life time of their*mother. Have they the right to prosecute their equity, under these orders, as if they had been included therein by express terms ? I think they have, and I will proceed to state my reasons for the opinion.
    13 Vesey.
    Though the right of the wife is a perfect right which she may assert or repudiate at her will, until the settlement is consummated by a final decree, yet the Court never permits it to be enforced in behalf of the wife, without also making a provision for the children. The husband is sometimes excluded, but the children never. In Murray v. Lady Elibanlc the master of the rolls (Sir 'William Grant) said: “Iam not aware that the wife has, in any case, been permitted to say she claims a settlement for herself and not for her children ; she has the option not to have any settlement made: but if a settlement is made, it is always directed for the benefit of the wife and children; if she does not desire any settlement, then the money is paid, to the husband ; if she desires a settlement, the settlement is upon her and her children.” To this forcible enunciation of the principle of the inseparability of the wife and the children, in any and every settlement ordered by this Court, other authorities might be added. I doubt if in the whole range of British and American authorities, a single case can be found in which the rule has been violated, and the wife provided for by a decree of this Court, and the children excluded. Can such a case be found in the practice of the Courts in this State? If this be correct as a statement of the law, then the mention of the children, in the preliminary order, though proper as to form, would be non-essential as to their rights. Taken in connexion with the unvarying practice of the Court, an order to the Commissioner to report the terms of a settlement upon the wife is essentially, and by the legal and technical sense of the phraze, an order that he also report provisions in favor of the children. It is always so understood. If the Commissioner were, on the authority of such an order, to proceed to report provisions for the benefit of the children, though not expressly named, could an exception be taken to his report on this ground 1 The answer would be, that the children are always included, and were intended to be included.
    1 Danl. Brae. 141.
    2 Eq. Jur. 1417.
    The practice of our Court on this, as on most other subjects, is not as formal as in the English Chancery. I think that there are but few of these preliminary orders for settlement that have fallen under my observation in the practice of our Courts, which are not, as to form, similar to those which I have cited as having been made in this case ; first, in the Circuit Court, and again in the Court of Appeals.— These orders present a fair specimen of our forms of practice in these matters. If the two learned Chancellors, who penned those orders, had been interrogated, after framing them, as to their meaning, and whether the children were included, I doubt not the reply would have been affirmative. They would have said that “ a settlement upon the children is a necessary concomitant of that upon the wife. To refer as to her, is to refer as to them also, for benefits are invariably secured to them through the instrumentality of the wife’s equity, where she seeks to enforce it.” Such, they would say, “ is the necessary import of the orders that have been made.” Such I think is the proper construction of them. I think that they virtually, and to all legal intents and purposes, embrace the children within their purview.
    Having arrived at this conclusion, I advance one step further in this discussion. If the children are included, or were intended to be included, in the orders for settlement, I think it very clear upon authority, that their equity survives to them, and that they have the same rights in this- Court as if their mother had lived to the consummation of the settlement.
    Judge Story has well summed up this matter. He says “ the wife’s equity for a settlement is generally understood to be strictly personal to her, and it does not extend to her issue, unless it has been asserted and perfected in her life time. If, therefore, she should die entitled to any equitable interest, and leave a husband, and her children are unprovided for by any settlement; still the husband will be enabled to file a bill to recover the same, without making any provision for the children. In truth the equity of the children is not an equity to which they are entitled in their own right. It cannot, therefore, be asserted against the wishes of the wife, or in opposition to her rights. The Court in making a settlement of the wife’s property, always attends to the interest of the children, because it is supposed that in so doing it is carrying into effect her own desire to provide for her offspring. But if she dissents, the Court withdraws all right from the children. But the right of the ¡children, to the benefit of a settlement, attaches upon the wife’s filing a bill for that purpose, and if she should die, pending the proceedings, without waiving the right to a settlement, the children may, by a supplemental bill, enforce their claim.”
    1 Mad. 244.
    j3 yes. 84 s. C. 13 Ves. l s. C. 14Ves. 496.
    g Dickens, 604.
    2 yes. sr, 671.
    I would refer to the elaborate and masterly opinion of Sir Thos. Plumer, in Lloyd v. Williams, in which all the cases are collated and reviewed. The conclusion arrived at is, that the children have no equity after the death of the mother, unless there has been a contract or decree for a settlement in her life time. If, however, there has been an order or decree, referring it to the master to approve a proper settlement to be made upon the wife and the children, and she die before the master has made his report, the children will have a right to a settlement, under the order, out of their mother’s property. Murray v. Lady Elibank.
    
    In Roiue v. Jackson, on an application by the husband for payment of the wife’s legacy, an order was made for the husband to go before the master and submit proposals to him for a settlement upon the wife. In this order it does not appear that the children were named. Before the proposals were laid before the master the wife died. And the husband again applied for the wife’s legacy. The Lord Chancellor (Thurlow) said, “ if there be an order directing a husband to go before the master, and to lay proposals for a settlement on his wife and the issue of the marriage, and the wife dies, leaving children, this Court will not part with the property, but keep the husband to the order. In this case there are issue, therefore let the husband go before the master and prosecute the order.”
    In an anonymous case the facts are thus stated: “ On the intermarriage of the petitioners, (husband and wife,) application was made to the Court ‘ to tak.e care of the wife's money, and that the husband should make a proper settlement and for this purpose it was referred to the master.— Proposals were made, subscribed by the husband and wife, but before the settlement was concluded they went to Jamaica, where they lived six years. On their return they filed a petition to be released from their proposal. Lord Hard-wick refused.” “ The proposal,” he said, “ was binding, and if the husband had died before he came home, and left children, under the articles, there would be a right to carry them into execution. And the Court has laid hold of a circumstance much less strong than so formal an agreement, to refuse what was desired.”
    
      l Ro er hus band^and wife 265.
    1 vol. 274.
    If, as has been decided in ¡Stimity v. Halthin, the equity the children attaches on the filing of a bill by the wife for a settlement, subject to her waiver before the consummation, I should think, and for the same reason, the children’s equity would attach, where in a bill not filed by her, but in s^e a Party; s^e asserts her rights to a settlement by a motion, and obtains an order for a report as to its terms. The same author observes, “if an order be obtained for the hus^and t0 lay proposals before the master for a settlement, and then the wife dies without waiving it; since such an order is a judgment, and the. Court always includes the children in the settlement, they have, by the order, obtained a right to prosecute it, and procure a provision for themselves.”
    I have heretofore considered this question, in reference to the right of the children, as based upon the orders of reference. I consider these orders, as Mr. Roper has said, in the light of judgments or decrees, that a settlement should be made. And then, as children are .always and inevitably included in such a settlement, I consider it, by the plainest in-tendment of law, a judgment or decree of the Court, that a suitable settlement should be made upon the wife and the issue. The omitted mention of the children in the order, would be supplied by the necessary implication. And in the language of Lord Hardwich, “ the Court would lay hold of a much slighter circumstance” than this, to secure the children a provision out of the estate of their injured and deceased mother.
    But there is another feature in the case to be considered. In pursuance of the order of reference, the Commissioner did, in the life time of the wife, report a settlement upon the wife and the children. It seems to me that this makes the case analagous to one where the husband is required to lay proposals for a settlement before the master, and in pursuance of such order he submits proposals for a settlement upon the wife and children. Before the Commissioner has reported on the proposal the wife dies; in which case, as we have seen, the husband would be held to his proposals. The report of the Commissioner presents, as the proposals of the husband do, in a definite and special form, the terms in favor of the children.
    But, as I have before stated, the report of the Commissioner of the 12th June, 1847, made and filed in the wife’s life, and recommending a settlement on the wife and children, has nei'er, to this day, been excepted to by the defendants, nor by the husband; though it was known by their solicitor that it was on file. This report having lain so long without any exception from any party having an interest in the fund, may be considered as having been acquiesced in by the husband and wile, and to have the force of an agreement between them. If the wife had lived to the ensuing term, the husband could not, then, after such a lapse of time, been permitted, under the practice of the Court, to file his exceptions. This question would have been adjudged against him by default. And so it must be now. His rights cannot be considered as having improved by a longer period of default. This exception is sustained.
    1 Strob.Eq. 12.
    The second exception of the defendants (complainants in the supplemental bill) is, that the Commissioner, dividing the fund according to the statute of distributions, and giving the husband one-third, has charged the support of the children on their own shares, instead of that of their father. As I have given the whole fund to the children, it will be unnecessary for me to consider this exception.
    In considering the first exception, on the part of the children of Lucinda Hill, I have necessarily considered and decided the questions made in the exceptions of Jonathan Hill and his creditors, ali of which are overruled. It is ordered and decreed that the case be referred back to the Commissioner, and that he modify his report in conformity with this decree.
    The defendant Jonathan M. Hill, and his sureties Theo-philus Hill and Bryan Dean, appealed from this decree, on the following grounds, viz:
    1. Because the decree previously made in this case, ordering an account in favor of J. M. Hill and wife, (the wife having died, pending the proceedings and before any settlement,) survives to the husband, the said J. M. Hill.
    2d. Because under the agreement, made at the sale of the estates in question, between J. M. Hill and the administrators, to discount the interest of Mrs. Hill, on the purchases of said J. M. Hill, under the faith of which agreement Theophilus Hill and Bryan Dean became the sureties of the said J. M.
    Hill, the said sureties are now entitled to a credit on their notes for the entire amount reported to be due to Mrs. Lucinda Hill.
    3d. Because the circumstances of this case, established on the hearing of the cross-bill before his Honor Chancellor Dun-kin, at June term, 1846, render the equity of the sureties to this fund superior to that of the children.
    4th. Because the children not being provided for in any of the orders of reference preliminaiy to a settlement on Mrs. Hill, cannot be equitably entitled to, the whole fund.
    5th. Because the claim of the children ought not, in any view of the case, to be extended beyond the recommendation of the Commissioner’s report, which allows them two-thirds of the fund; especially as their support, for many years past, has been allowed out of the fund, and they are now living with and maintained by their father, J. M. Hill; and because eqUity to this fund was never before raised, and is now presented by strangers.
    gecauge gig Honor erred in placing his decree, in any measure, on the alleged report of 12 June, 1847, in favor of Mis. Hill, because that report was made, according to the statement of the Commissioner, without notice to the adverse parties or their solicitor, was never in the Commissioner’s office at any time, and remained in the possession of the solicitor of Mrs. Hill, from June, 1847, till June, 1849, without notice of its character or contents to the solicitor of the defendants, or to the defendants themselves; and because leave was refused to the defendants to file exceptions to that report; and further, because the solicitors for the children did not, on the trial, nor do they now, insist on that report, under the circumstances attending it.
    7th. Because the sureties of the defendant J. M. Hill, are entitled to credit for this fund, as assignees thereof, before any order of the Court, looking to a settlement on the wife, before any interposition of her equity, and by the express agreement of H. H. Hill, the plaintiff, who is now raising the equity of the children.
    8th. Because under all the circumstances of the case, the Court having full discretion as to the amount to be settled on the children, it is respectfully submitted, would be doing great injustice to the sureties of J. M. Hill, to take from them more of this fund than the sum reported by the Commissioner, as properly to be settled on the children.
    
      Griffin, for the motion.
    
      Bauslcett, contra.
   Curia, per

Johnston, Ch.

The error into which the Chancellor fell, of supposing that the children of Lucinda Hill were plaintiffs, instead of defendants, in the supplemental bill, is an accuracy perfectly immaterial to the real questions discussed in the decree: which relate to the rights arising to the issue of Lucinda from the general order for a settlement.

It is unnecessary to place any reliance upon the report made at June sittings, 1847. For though it be conceded that there were no such report, or that it may be now taken from the file, on the ground that defendant’s counsel were not apprised of its existence; there is enough in the case to shew that the decree of the Chancellor is still sustained by principles too well founded to admit of question.

The authorities shew, that where there is a general decree for a settlement, during the life of a wife, the equity of the wife is always intended to embrace the interests of her children, unless by the terms of the decree the children are excluded ; (an exclusion which the Court is very unwilling to countenance ;) — and that, if the wife dies after such a decree, the Court will execute it for the benefit of the children.

Such a decree creates an impediment against the husband’s afterwards reducing the choses of the wife. And, though the statute of 29 Charles entitled the husband to administer to the wife, without account, yer where a settlement was decreed, he would not have been allowed thus to possess himself of her choses, to the exclusion of her children; unless the children were put without the pale of the settlement.

The former decrees in this case have established that the sureties of Jonathan M. Hill are not entitled to be regarded as his assignees of his wife’s equities in the fund to be settled. Being a femme coverte she was not capable of barring herself by the agreement insisted on. And, though the husband might have transferred her interests, his attempt to do so was by executory agreement, which remained unexecuted at her death.

The Court, therefore, acting under the decree for a settlement, was to execute, on behalf of the children, such a settlement as it would have approved, if Jonathan M. Hill were, personally, the opposing party, instead of his sureties. And it will not admit of a doubt, that if he were present, instead of them, he couid offer no successful opposition to the terms imposed by the Chancellor. He had already received twelve out of twenty thousand dollars of the wife’s fortune, and after wasting it, abandoned her. And it would have been but an aggravation of his misconduct, it he had come forward to strip her children of the remnant which was left.

It is ordered that the decree be affirmed, and the appeal dismissed.

Dunkin and Dargan, CC. concurred.

Caldwell, Ch. having been of counsel, did not sit in this case.

Decree affirmed.  