
    *Nelson v. Jennings et als.
    January Term, 1856,
    Richmond.
    Absent, Tyler, J.
    1. Decrees — Finality Unaffected by Rendition of Subsequent Decree in Same Cause. — A decree, final in its terms, Is not rendered Interlocutory by the retention of the cause on the docket, and the rendition of a subsequent decree in the same cause.
    2. Final Decree — Subsequent Decree in Same Cause Erroneous. — After a tinal decree, which settles the right of all the parties, and disposes of the whole case made by the pleadings, any subsequent decree in the same cause is not made in a pending cause, and is therefore erroneous.
    3. Same Subsequent Decree in Same Cause Set Aside after Three Years. — Upon a demurrer to a hill of review in such case, presented within three years after the date of the second decree, and after three years from the date of the first decree, the subsequent decree was set aside, and the bill dismissed as to the first decree.
    4. Conveyances by Femes Covert — Statute—Application, — The act, 1 vol. Rev. Code 1819. p. 365, ch. 99, § 15, in relation to conveyances by femes covert, does not apply to personal estate. And a deed executed by husband and wife, with the formalities required by that act and admitted to record, is not sufficient to pass the interest of the wife in personal estate, which was incapable of being reduced into possession by the husband.
    On the seventh day of October, 1839, Martha Whiting (who was Martha Shield) then the wife of John C. Whiting, of Elizabeth City county, joined with her husband in executing to Gill A. Cary of said county, a deed of trust, for the purpose of securing the payment of certain debts then due to William Jennings and Ann Robinson.
    The said deed of trust purported to convey property by the following description:
    “A certain parcel or lot of land, lying and being in Yorktown, in York county, State of Virginia, bounded as follows, &c. Also the whole of the said Martha Whiting’s interest in and to the following slaves, to wit: Betty, William, Milly, Peggy, Maria, and others whose names are not here recollected and specified, but intended *to be as effectually conveyed as if they were, which slaves were of the property of John Shield, dec’d, the father of the said Martha Whiting, from whom she derives her right, title and interest, the whole of which, with the future increase of the females of the said slaves, and all the estate, right, title and interest, of the said John C. Whiting, by virtue of his marital rights in and to the said land, or lot of land, and slaves aforesaid, with the premises and appurtenances, in and to the said parcel or lot of land aforesaid.”
    The said deed of trust provided, that in default of payment of the said debts by the said John C. Whiting, at the time or times specified for such payment, the trustee, or his personal representatives, should sell the property therein conveyed, (or so much as might be sufficient,) in the manner, and with the formalities therein prescribed. That he should, out of the proceeds, defray the expenses of the trust, and pay off the principal and interest that should then be due to the said Jennings and Robinson; and the residue, if any, “the said Gill A. Cary, his executors and administrators, should and would convey, assign, transfer, set over, and pay, to the said Martha Whiting, and her children, by her marriage with the said John C. Whiting, in preference to the said John C. Whiting, and his child or children, by any other wife, or in preference to any claim which the said John C. Whiting might set up as the husband of the said Martha, whether he survived her or not, it being the intention of the said John C. Whiting, and the said Martha Whiting his wife, that all the estate, right, title and interest, which would otherwise be derived to the said John C. Whiting, by virtue of his rights as husband of the said Martha, is by these presents relinquished in favor of the said Martha and her child or children, by the said John C. Whiting, in and to the residue of the said moneys aforesaid; and that the same shall be otherwise secured (if necessary) to the said Martha Whiting, and her child or children, by the said John C. Whiting, or her heirs, if she requires it to be *done, in such legal mode as her counsel learned in the law shall advise.”
    The said deed of trust was acknowledged by all the parties thereto, and the privy examination of the said Martha Whiting taken, before two justices of the peace for Elizabeth City county, on the 7th day of October, 1839; and it was admitted to record in the countj' court of York county, on the 27th December, 1839. The will of John Shield, the father of said Martha, had been admitted to probate in York county court, .on the 15th May, 1837. By that will, the whole of his property of every kind was. left to his widow, until her death or marriage; upon the happening of either of which events, it was tobe “equally divided among his children then alive.” To which is added this clause: 1 ‘ And in case any of my children die without lawful heir, then the property they had received, to return to my children then living.”
    At the time when the said deed of trust was executed, the said widow, Susan Shield, was living and unmarried, and in full possession of all the property of the said-John Shield, dec’d. The said John C. Whiting died sometime between the years 1839 and 1842. The said Susan Shield survived him, and died unmarried in the latter part of 1842, or the early part of 1843. The said John C. Whiting had never at any time reduced into possession any portion of the property, to which his said wife Martha might become entitled under her father’s will, nor disposed thereof, except so far as that deed of trust might affect it. Gill A. _ Cary administered on the estate of John C. ” Whiting, who had died insolvent. Prior to the 2d November, 1843, Gill A. Cary died. John B. Cary, his son, administered upon his estate, but no person was appointed administrator de bonis non of John C. Whiting’s estate. The estate of John Shield, deceased, after the death of his administrator, was committed to William Howard, sheriff of York county; and the negroes and other property, passed into his possession.
    *On the 2d day of November, 1843, the said William Jennings and Ann Robinson, filed their bill in chancery in the ■ Circuit Superior Court of York county, against the said Martha Whiting, and her infant children, Susan M. Whiting and John S. Whiting, and John B. Cary, ad-, ministrator of Gill A. Cary, dec’d. The bill and exhibits therewith filed showed the facts already stated. The bill further" stated, that a division of the estate of John Shield, deceased, was contemplated by the legatees towards the end of that year, 1843; that the complainants desired to close their said deed of trust; that by reason of the death of the trustee, the trusts created by the said deed could not be executed, without the appointment of a new trustee by a court of equity; that John B. Cary, administrator of Gill A. Cary, was willing to act as trustee without compensation. And .prayed that the said John B. Cary, or such other person as the court might think fit, should be appointed trustee, “with directions to execute the trusts created by the said deed, in conformity with the provisions thereof. ”
    Martha Whiting answered the said bill. She admitted the execution of the deed of trust, admitted her belief that the allegations of the bill were true, and made no objection “to the decree prayed for by the said bill, for the appointment of a trustee in the place of the said Gill A. Cary, deceased, to execute the trusts created by the said deed: provided, that no more of the property conveyed by the said deed, or intended to be conveyed, be sold, than will suffice to pay the said debts thereby secured, or the amount remaining in arrear and unpaid ; and that the residue or surplus, if any, either of property or money, or both, be delivered over to her, as the said John C. Whiting is dead, and according to the spirit, .meaning and intention of the deed, she is justly entitled to such residue or overplus. ” The said bill was also answered by William Howard, sheriff of York county, who was appointed guardian ad litem for the infant defendants Susan M. and John S. Whiting, submitting their rights in the premises, to the protection *of the court. And the said John B. Cary, administrator of Gill A. Cary; answered the said bill, admitting the allegations thereof to be true, so far as he was informed, and declaring himself willing, for the benefit of the parties concerned, to execute the trusts created by the said deed, without charging commissions.
    All these answers being filed with the bill on 2d day of November, 1843, the court proceeded immediately, on the same day, to enter a decree, appointing the said John B. Cary a trustee in the place of Gill A. Cary, dec’d, to execute the trusts created by the said deed, in conformity in all things, with the requirements and provisions of the deed aforesaid, in like manner as if he had been the original trustee. The said decree further directed him to pay or deliver to the said Martha “so much of the property conveyed, or intended to be conveyed by the said deed, and of the moneys arising from the sale of property thereby conveyed, as shall remain after satisfying the trusts created by the said deed in favor of the plaintiffs, and the costs and expenses.” And it finally directed him to return an account of sales under the said deed, to the clerk’s office of York county, to be recorded pursuant to the act of Assembly.
    On the 20th May, 1844, the said John B. Cary returned a report to the said circuit court, entitled, “an account of sales of slaves.” The said Cary also charged a commission of five per cent, on the said sales; and he stated the net proceeds of the said sales to be $973 75. He reported that there was due to William Jennings & Co., $1,140 94, but without exhibiting the evidences of the debt. William Jennings was reported as the purchaser of the slaves. On the 1st day of November, 1844, the court made an order, reciting that no exception had been filed to said report, and directing it to be confirmed; and directing further, “that the net proceeds of sales of the’slaves in said report mentioned, after defraying the expenses of sale, and costs of suit, as heretofore decreed, be paid over to the plaintiffs in part of their" debt in the bill and proceedings in this *cause mentioned; and the object of this suit being fully obtained, the cause is .ordered to be stricken from the docket.” After these proceeding's were had, the said Martha Whiting intermarried with one William Nelson; and on the 30th day of October, 1847, the said William and Martha presented to the said circuit court a bill of review and supplement in the said cause, and a petition for leave to file the same, which was granted, and the said bill was filed accordingly.
    The bill of review and supplement pra3ed process against the said William Jennings, Ann Robinson, John B. Cary in his own right, and as administrator of Gill A. Cary deceased, Susan M. and John S. Whiting. It recited all the proceedings of the former suit, and pointed out the errors therein, and the grievances inflicted thereby; and prayed the court for specific and for general relief. In particular, it prayed that the said decree of the 2d of November, 1843, and 1st of November, 1844, might be set aside, and the slaves sold by Cary, decreed to be delivered by Jennings, the purchaser, to the complainants, and their hires accounted for; or that the amount received by said Jennings & Robinson from Cary, might be decreed to be paid by them to the plaintiffs, with interest; and that the complainant, Martha Nelson, might be put in the same situation in every respect, as far as circumstances would then permit, as she would have been, in case such decrees had never been pronounced and executed. Process having been served on all the defendants, three of them, to wit: Jennings, Robinson and Cary, filed a joint and several demurrer to the bill, at rules on the first Monday in February, 1848; and on the first Monday =of May, 1848, the cause was set for hearing as to all the parties.
    On the 2d day of November, 1848, Bolivar Shield was appointed guardian ad litem for Susan M. and John S. Whiting, and filed an answer, submitting them to the protection and guardianship of the court; and on the same daj, the cause was heard by the court on *the demurrer of the adult defendants, the answer of the infant defendants, and the exhibits, and was taken under advisement.
    On the 30th day of April, 1849, the death of William Nelson, one of the complainants, was suggested on the record, and the court decreed as follows:
    “And the court having now maturely considered the record in this cause, is of the opinion, that the decree pronounced in the original cause of Jennings & Robinson v. Whiting & als., on the 2d day of November, A. D. 1843, was a final decree, and therefore, that no relief against the same can be granted in this cause; and that the decretal order pronounced in the said original cause, on the 1st day of November, 1844, is erroneous: Therefore, the court doth adjudge, order and decree, that the said decretal order of the 1st day of November, A. D. 1844, be set aside and annulled, leaving the said decree of the 2d day of November, A. D. 1843, in full force. And the court doth not give costs, to either party.”
    From this decree Martha Nelson appealed.
    Conway Robinson, for the appellant:
    An assignment by husband of a wife’s reversionary interest, or estate in remainder, in slaves or other chattels, does not pass her rights, when he dies before the life estate determines, and she survives him. Hayes v. Ewell’s adm’r et als., 4 Grat. 11; Moore v. Thornton, 7 Grat. 99. Even though the wife joins with the husband in disposing of the reversionary interest or remainder, that disposition is valid against her, if she survives him. Stifle v. Everitt, 1 Mylne & Craig, 37; 13 Cond. Eng. Ch. R. 275; Holtz v. Allen, 3 Eng. Eaw and Eq. 166; 1 Bright’s Hus. & Wife, p. 89, 'i 6, p. 92, l 20.
    With respect to real estate, the rule was, that the wife, by joining her husband in a fine, might bar her interest in real estate, whereof he was seized in her right. 2 Eomax Dig. 354-5 (marg.) 468 (top p.). The *Code of 1819 goes no further. Nelson v. Harwood, 3 Call 394; 1 R. Code 1819, p. 366, ¿ 15.
    As in England, a married woman could, in respect to a reversionary interest in personal property, do no act to affect that interest, during the life of the tenant for life, so in Virginia a like rule prevailed until the Code of 1849, p. 513, ch. 121, g 4, l 7.
    The tenant for life having survived the husband, and the wife the husband, in the case at bar, Mrs. Whiting’s interest in the slaves was not affected by the deed of October 1839, and she is entitled to them unless her rights are impaired by the proceedings in the suit brought by Jennings & Robinson. The bill merely prayed the appointment of a new trustee to execute the trust of the deed. Did not Mrs. Whiting surrender her rights by the admissions in her answer? She admitted the allegations of the bill, which were a mere statement of the facts of the case, and assented to the appointment of a trustee. There is nothing in the statements of the bill inconsistent with the rights now asserted by Mrs. Nelson. She assented to the appointment of a trustee, to execute the deed according to its legal effect, but did not intend to give it any new or additional force or obligation. The proviso in the answer, which was intended to limit and restrain, cannot be interpreted to enlarge its effect. Such is the well settled rule in the interpretation of statutes. It is merely an expression of a desire that the deed may not be enforced beyond its legal effect. If she had rights in the subject, she is not to be deprived of them, unless she relinquished them with full knowledge of them.
    The decree of the 2d November, 1843, did not affect the rights of the appellant. It simply appointed a trustee. She might still have claimed the slaves, or filed an original bill claiming the proceeds, while in the hands of the trustee, or at any time within five years after the payment by the trustee to any one else.
    The decree of the first November, 1844, was in conflict *with the rights of the appellant, and hence the necessity of a bill of review. This was filed in proper time, to wit, within three years from the date of the decree sought to be reviewed. There was a demurrer to the bill of review. The court should have overruled the demurrer, and setting aside the decree of the 1st November, 1844, should have so placed the parties in the same position, as if it had never been rendered, instead of dismissing the bill, on the ground that the, decree of the 2d November, 1843, was a final decree.
    Morson, for the appellees:
    In my view, the question of the effect of a husband’s assignment of his wife’s reversionary interest in personal estate, does not arise in this cause, because the wife here joined in the assignment by deed, and was privily examined and acknowledged •the deed. The act 1 Rev. Code 1819, p. 36S, allows a married woman to convey ‘ ‘any .estate or interest” by uniting in a deed with her husband and being privily examined, and the deed shall have the same effect to pass her interest, as if she were an unmarried woman. Nothing is said to confine the “estate, or interest” to real estate, except in the proviso to the act, which obviously was intended merely to protect the wife from liability for ány covenants she may have made. It was intended not to narrow or limit the right of the wife to convey, but merely to protect the wife from recoveries against her on her covenants.
    It is admitted that the statute permits a married woman to convey her reversionary interest in real estate, and it would be strange if, while the law permits her,to dispose of her most stable and valuable property, she should not be permitted to convey her personal estate. I am not aware that this statute has ever been construed in its application to personal estate by any Virginia decision, and we are therefore left to the words of the statute to arrive at its meaning, and I submit that its broad and general terms cannot be narrowed and confined, as contended for by the counsel for the appellant. *But if the appellant did not part with her interest in the property in controversy by her deed, she relinquished her rights by her answer of record, submitting to have the deed carried out according to its terms, after she became sui juris by the death of her husband. And she cannot now withdraw that consent, after the trustee acting under that consent has actually sold the property for the benefit of creditors, and perhaps paid over the proceeds to them. If her consent was given under a mistake as to her rights, it was a mistake of law, all the facts being well known to her, from which she cannot be relieved by a court of equity.
    The bill of review was then properly held insufficient on its merits, and the demurrer was properly sustained. If, again, the decree of the 2d November, 1843, was a final decree, as I submit it was, the bill of review was not exhibited within three years, and should not have been entertained for that reason also. But it is said that was not a final decree, because another decree was entered subsequently in the cause; but in my view, the subsequent decree of the 1st November, 1844, was mere surplusage. There was no occasion for it. The trustee newly appointed by the first decree, might have gone on to execute the trust without any further intervention of the court. It is said the bill of review is sustained as to one of the errors referred to in it, and yet a demurrer to the bill was sustained. This is nice criticism. The substance of the decree of the court below was, that the decree of the 2d November, 1843, was a final decree, and that the decree of the 1st November, 1844, was mere surplusage.
    Robinson, for the appellant,
    in reply:
    The terms of the act of the Code of 1819, commented on by Mr. Morson, show that it embraced only such property as could be conveyed only by an instrument under seal, and which was required to be recorded, or in other words, real property. The change of the phraseology of the act in the Code of 1849, on this subject, *still further corroborates this interpretation. As to the consent of the appellant in her answer, she cannot be held to have done anything but what she intended to do; and it is manifest that she did not intend by her answer to surrender any of her rights, or to add any new efficacy to the deed. But the decree of 1st November, 1844, has been set” aside, and the appellant has a right to be placed in the same position in which she would have been without that decree. To effect this, the court ought to require the appellees to answer the bill of review, in order to a final decree.
    
      
      Decrees. — On matters pertaining to decrees, see monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
      Conveyances by Femes Covert. — See monographic note on “Husband and wife” appended to Cleland v. Watson. 10 Gratt. 159.
    
   FIELD, P.

On the 7th of October, 1839, John H. Whiting and Martha his wife, conveyed to Oill A. Gary in trust, certain real and personal estate, which Whiting claimed to be entitled to in right of his wife after the death of her mother, Mrs. Susan Shield, who held the property as tenant for life under her husband’s will, remainder over to the children of the testator. The prop-, erty was conveyed in the first place, for the payment of a debt due from Whiting to the appellee Jennings, and another to the appellee Robinson, the overplus to be for the separate use of Mrs. Whiting and her children by Whiting. Gill A. Cary the trustee, John C. Whiting the grantor, and Mrs. Susan Shield the tenant for life, having departed this life, Jennings and Robinson filed thfeir bill in chancery “to appoint a new trustee in place of Gill A. Gary, with directions to execute the trust created by the said deed in conformity with the provisions thereof,” and for general relief. It was a friendly suit. The defendants filed their answers immediately. Mrs. Whiting in her answer assenting to the appointment of a new trustee to sell as much of the property as might be necessary for the payment of the plaintiff’s debts, and asking that what might be left should be delivered over to her under the provisions of the deed of trust. The cause was heard by consent, and on the 2d day of November, 1843, the day on which the bill and answers were filed, the court rendered *a decree which settled and decided every matter to which the bill related, and directed the payment of costs. It appointed John B. Cary trustee in place of Gill A. Cary, “to execute the trusts created by the deed of the 7th of October, 1839, according to the provisions of the deed,” and directed him to proceed to execute the trusts “whenever required by the complainants or either of them;” and to “pay and deliver over to the defendant Martha Whiting, so much of the property conveyed, and of the moneys arising from the sale, as shall remain after satisfying the trusts in favor of the plaintiffs, and the costs and expenses of executing the trust, together with the costs of suit.” This decree having embraced every object contemplated by the suit, contained no reservation of leave to the parties to apply at a future day for any other or further relief, or for anj modification of the decree, or of any right to apply to the court to see in what manner the trustee had acted, or to enforce him to perform his duty, or to appoint another in his place. But on the contrary, showing that the decree was intended and considered to be final, there was added to the decree a direction to the trustee to make return of his sales to the clerk’s office of the county of York to be recorded, pursuant to the act of Assembly in that case made and provided. Since the repeated decisions of our Court of Appeals, declaring what decrees are to be considered as final, I should have supposed there would be no difficulty in determining that the decree above referred to, was final. It settled the rights of all the parties, directed how the costs should be paid, contained no sort of reservation whatever in favor of any party to apply for further relief, or for any other purpose, at a future day. In Tennent’s heirs v. Pattons, 6 Leigh, 196, Judge Carr said, that every decree which disposes of the whole cause and leaves nothing to be done, is a final decree. But there is a stronger case, a much stronger case, than this is, to shew the finality of the decree under consideration. It is the case of Harvey and *wife v. Bronson, 1 Leigh, 108, which may be regarded as the leading case on this point. In that case, a decree had been rendered disposing of the whole subject, deciding all questions in controversy, ascertaining the rights of the parties and awarding costs, and a commissioner had been appointed to sell property, to account for and pay the proceeds to the parties, with liberty to them to apply to the court to add other commissioners, or substitute new commissioners, or have a decree for partition of the property directed to be sold. The Court of Appeals, by the unanimous opinion of all the judges who sat in the cause, held the decree to be final. The opinion delivered by Judge Carr, in that case, in which Judges Green and Brooke concurred, placed the question in a light too clear to admit of misapprehension or doubt. The principle of this case was-affirmed in the cases of Paup’s adm’r v. Mingo and others, 4 Leigh, 163, and Thornton v. Fitzhugh, 4 Leigh, 209; in. each of which, the causes were retained on the docket, for further proceedings to be had therein — shewing clearly, that the mere fact of the cause being retained in court and on the docket, does not divest a decree of its finality. Nor is a final decree converted into an interlocutory decree, by adding thereto an order suspending the decree as to a part of the account involved in the cause. Flemming, &c. v. Bolling, &c., 8 Grat. 292.

On the 30th of October, 1847, which was after the lapse of three years, eleven months and twenty-eight days, the bill of review was filed by William Nelson and Martha his wife, who was Martha Whiting before her intermarriage with Nelson, pointing out errors in the decree of the 2d November, 1843, and asking the court to revise the same, and that Mrs. Nelson might be “reestablished” in her right to the property referred to in the deed, and to the money for which the negroes had, as she alleged, been improperly sold by the trustee, John B. Cary, under the decree of the 2d November, 1843. This bill of review not having been filed *within three years from the date of the decree referred to, the plaintiffs could not have that decree reviewed or reversed, if it had been ever so erroneous. But if its only meaning and effect was simply to appoint a trustee in place of the one who had died, and for no other purpose, and in no wise changed, ratified or confirmed that deed, or any of its provisions, there was certainly no error in the decree to be corrected, either on a bill of review or appeal, prosecuted in due time, of which the plaintiffs could complain. But what the true construction of that decree is, as to its operation on the rights of Mrs. Nelson, formerly Mrs. Whiting, cannot arise or be determined on the present occasion. That construction may be had in a new suit instituted for that purpose. If that question was before us, we should not hesitate to say that, as to' her personal estate, that deed standing alone was inoperative.

The bill of review had reference to another order or decree, made by the same court, purporting to be a decree made in the same suit. The trustee, after his appointment had been made, proceeded to execute the trust, on the 22d February, 1844, and sold three negroes for the net sum of $973 75, and made report of his proceedings to the Circuit Superior Court of Naw and Chancery of York county. And on the 1st day of November, 1844, that court made an order in the suit of Jennings and Robinson v. Whiting, in which the final decree had. been rendered as above, stated, by which the report of the sale of the negroes was confirmed, and the net proceeds of the sale, after defraying the expenses of the sale -and costs of suit, were directed to be paid over to the creditors Jennings and Robinson, and then adds these words to the order: “and the object of this suit being fully obtained, the cause is ordered to be stricken from the docket.” In relation to these words I desire to make a single remark. If the retaining a cause in court, in order to give further relief, or to change the decree by adding to the commissioners, or appointing other commissioners to sell the property, or *to make an order for having the property divided, instead of beihg sold,-or to decide upon apart of the account embraced in the decree, will not have the effect, as herein before shown from the authorities referred to, of rendering a final decree interlocutory, surely the mere retaining the cause on the docket by the clerk, when nothing more is to be done, cannot have that effect. In the case of Yarborough v. Deshazo, 7 Grat. 374, the Court of Appeals held, that “a case in which there had been a final decree was not a pending suit in the sense of the Code.” This order of the 1st of November, 1844, was therefore not made in a pending suit, and was for that reason erroneous and could be revised, either, upon an appeal, or by bill of review. Whether the order upon its merits was right or wrong, cannot be determined by an inspection of the record; for the whole record of that proceeding consists of the report of the sale by the trustee and the order of court made thereon. The bill of review applies to this order, and suggests errors in it. The defendants Jennings, Robinson and Cary demurred to the bill, the other defendants answered. The cause was heard on the 30th April, 1849, on the record, which was all-sufficient, for the demurrer put in issue all questions which could arise on the record, and the court on the hearing reversed the order of the 1st day of November, 1844, as it should have done, and if it had dismissed the bill, as to the old suit in which the decree was final, all would have been right; but the court in effect did what may be regarded as substantially tantamount to a dismission, and that was, in the language of the court, “leaving the said decree Of the 2d November, 1843 in full force.”

I am, therefore, for affirming the decree.

GIDMEJR, J.,

thought the court below erred in matter of form, for which he was unwilling to reverse the decree, as a correct result had been obtained, and concurred generally in the opinion of RINDD, P.

^THOMPSON, J.

That the deed of Whiting and wife of the 7th of October, 1839, was wholly inoperative and a nullity, so far as it purported to convey Mrs. Whiting’s reversionary interest in the personal estate to which she was entitled under the will of her father after the- death of her mother, seems to me to be too clear for discussion. Upon the reasoning and the authorities cited by the appellant’s counsel, its inefScacy is placed beyond the reach of doubt or cavil. If, then, before the filing of her answer her reversionary rights in the personalty .were unaffected by the deed, did her answer, filed when she was sui juris, operate by way of confirmation or ratification to render the deed valid and effectual in law, to bind and pass her rights in the personalty theretofore unaffected by the deed? Are we at liberty to give to her answer any other meaning or effect than a consent to the appointment of a new trustee, in the room and stead of the deceased trustee, to execute the trust?' And if we must, in virtue of the proviso of her answer, are we not inevitably driven to the conclusion, that this lady, without any consideration, either new or old, in gross and palpable ignorance of her legal rights, made a mistaken admission, the effect of which, if she is to be bound by it, is to divest her of her rights? The first decree rendered on the 2d' November, 1843, and which was treated by the court that rendered it as interlocutory, did not directly and necessarily compromit the rights of Mrs. Whiting, afterwards the Wife and now the widow of Wm. Nelson. But the subsequent decree of the 1st November, 1844, treated by the court as a final decree, based upon the first as interlocutory, did directly invade the plaintiff’s rights, by confirming the sale of the personalty not effectually conveyed by the deed, and directing payment of the proceeds to the plaintiffs, who were the creditors in the trust deed. The bill of review, filed in this cause on the 30th October, 1847, had for its object the re-viewal and reversal of these two decrees. The defendants Mid not, . according to the regular practice, plead the decrees and demur to the opening of the enrollment, but filed a simple demurrer to the bill, and the court, upon that' demurrer, on the 30th April, 1849, expressed the opinion, that the decree of the 2d November, 1843, was final, and that therefore no relief against the same could be granted in this cause, and that the decree of 1st November, 1844, was erroneous, and adjudged that the said decretal order of the 1st November, 1844, be set aside and annulled, leaving the decree of the 2d November, 1843, in full force. We are left to conjecture the reasons of the court for declining to disturb the first, and for setting aside and annulling the last. The finality of the first decree, the reason assigned by the court for refusing to review it, cannot be the true one, because none but a final decree can be reviewed. The court must have meant that the lapse of time, more than three years from the date of the decree to the filing of the bill, precluded the bill of review, although the statute of limitations was not pleaded, and the court must have regarded the last decree as a nullity, because the first was in its opinion final. I consider it a question of doubt whether upon its face and by its terms the first decree was final. It was just such a case that either the one or the other would have been proper, accordingly as the court might elect to make it the one or the other. The court that made it, considered it interlocutory, and based upon it its final decree. This last decree made a resort to the bill of review necessary to get that out of the way. The bill characterizes the first as an interlocutory, and the last as the final decree. The defendants did not plead the decrees and demur to opening the enrollment, but relied upon a demurrer to the bill, unaccompanied bj- a plea of the record of the decrees. Yet the court, whilst conceding the party entitled to the relief of having the last decree, the one most prejudicial to her interests, and confessedly final, declared null and void, nevertheless sustained the demurrer to the bill as to the *first decree, the one least prejudicial to her interests, and one which the court, rendering both decrees, considered and treated as interlocutory. It is to me a singular proceeding that a demurrer to the whole bill of review impeaching two decrees, one alleged to be interlocutory, and the other final, should be sustained, and in the same breath relief given against the last and final decree, by declaring it null and void. Was the last decree declared null and void upon its merits, and because it conferred rights on' the plaintiffs in the original bill in derogation of the rights of Mrs. Nelson, not conferred by the first decree, or was it nullified because though conforming to the rights of the parties declared by the first decree, it was merely supererogatory and unauthorized in consequence of the first being a final decree? There is something in the language of the court that would seem to justify the inference that the court reversed it upon its merits as derogating from the rights of Mrs. Nelson under the first decree, and that whilst she was entitled to no relief against the first decree, because final, in the proceeding by bill of review, yet that she might be in some other form of proceeding. It seems to me, whether the first decree were final or interlocutory, if interpreted to mean anything more than the appointment of a new trustee, she was entitled to be relieved against it by this proceeding, which is both a bill of review and supplement — for the court having given to it the efScacy of a bill of review to reverse and annul the last decree, the plaintiff was thereupon entitled to the relief of having what was done under the reversed decree undone and things placed in statu quo. And this necessarily involved the (true construction of the first decree' — ■ the extent to which it affected the plaintiff’s rights whether final or interlocutory— and this question should have been adjudicated upon answer instead of demurrer to the bill of review.

If it could be made to appear by allegation and proof in the answer and evidence, that Mrs. Nelson, with full *knowledge of her rights under the trust deed,'even without consideration, and much more, if with some consideration new or old, intended to, and did by her answer, surrender her rights, then the decree ought not to be disturbed; otherwise, it should have been set aside, reversed and annulled.

I am, therefore, of opinion that the decree of the court below is erroneous in sustaining the demurrer to the bill of review, or so much thereof as sought to review and reverse the first decree, and that, instead of sustaining, the court ought to have overruled the demurrer, and required the defendants to answer the bill. .

CLOPTON, J., concurred with THOMPSON, J.

Decree affirmed by a divided court.  