
    *Williamson v. Beckman.
    February, 1837,
    Richmond.
    Husband and Wife — Separate Estate — node oí Alienation Provided in Instrument — Effect.—A deed of settlement made "before marriage, and conveying real and personal property to a trustee for the separate use of the intended wife, provides that after the marriage she shall have power, by written instrument under her hand and seal, attested by three or more witnesses, in the nature of an appointment of a will and testament, to dispose of the property as freely as if she were a feme sole: Held, this is a power to dispose by will only, and not by deed.
    Same — Same—Same—Same.*—A feme covert holding separate property in real estate by deed or will which empowers her to dispose of it in a designated mode, cannot make a disposition in any other, though other modes be not expressly negatived by the deed or will: per Tucker, P.
    By deed executed the 3rd day of September 1825, between Rontain Beckham, Ann A. R. Stephenson and John S. Gallaher,' — ■ reciting that a marriage was intended to be shortly had between the first two named parties, and that it had been agreed that all the said Beckham’s property should be conveyed in trust for the sole and separate use and benefit of the said Ann A. • R. ■Stephenson, free from the debts or control of her intended husband, and subject to her own control and disposal,' — the said Rontain Beckham, in pursuance of the said agreement and in consideration of the said intended marriage, conveyed to the said Gallaher all his property, real and personal (particularly described and enumerated in the deed) in trust for the said Beckham until the marriage, and thereafter in trust ‘'that the said Gallaher shall permit the said Ann A. R. Stephenson to receive, take and enjoy all the interest and profits of the real estate, and the free use and absolute disposal of all the personal property conveyed, as fully and as freely as if she were a feme sole; and should-she survive the said Fontain,, the said property shall be at her full and absolute disposal; and the said Ann shall at all *times after the marriage have the power, by a written instrument under her hand and seal, and attested by three or more witnesses, in the nature of an appointment of a will and testament, to dispose of the said property, real and personal, to whomsoever she may please, as freely as if she were a feme soie; and in default of such appointment, all the said property shall descend to her lawful heirs or representatives.” And Fontain Beckham covenants that the said Ann shall at all times during the coverture take, receive and enjoy the rents and profits of the property, real and personal, to her sole and separate use, according to the trust above declared, and may “devise or dispose of the same by any instrument of writing, in the nature of an appointment or last will and testament, signed, sealed and attested as above mentioned, in as full and ample a manner as if she were a feme sole. ’ ’
    This deed was duly recorded in the county court of Jefferson.
    The marriage took place; and on the 17th of October 182S, Ann A. R. Beckham, by deed signed and sealed by her and attested by three subscribing witnesses, appointed all the property which had been conveyed for her benefit by the deed of marriage settlement, to the sole and separate use of her husband, and to be subject to his sole and separate control and disposal; reserving, however, to the said Ann her legal right of dower in the real estate. The privy examination and acknowledgment of Ann A. R. Beckham was taken and certified by two justices of the peace, and the deed was duly recorded in the court of Jefferson county.
    In December 183S, Fontain Beckham exhibited a bill against Carter Williamson, in the circuit superiour court of law and chancery for Jefferson county, setting forth that by articles under seal, executed by the plaintiff and the said Williamson, the plaintiff had agreed to sell *and convey, and Williamson had agreed to purchase, for the sum of 13,500 dollars, a certain valuable mill property and parcel of land (part of the same property which had been conveyed in trust by the deed of marriage settlement) ; the deed of conveyance to be executed by whatever parties should be necessary, and in such manner, in every other respect, as to convey a full, clear, absolute and perfect title in fee simple to the said premises. That the plaintiff was ready and willing to comply with his agreement, and had tendered a sufficient conveyance of the premises to Williamson; who, being advised that the plaintiff was unable to make-a good title, refused to accept the conveyance, or to comply with the agreement on his part. Wherefore the bill prayed that the plaintiff’s title to the premises in question might be declared a good and sufficient title, and that the articles of agreement might be decreed to be specificially executed on the part of Williamson.
    Williamson answered, declaring his willingness to perform the agreement, provided a good title to the premises could be made to him by the plaintiff; and he submitted to the court, whether such title could be made, under the circumstances in which the property had been placed by the deed of marriage settlement.
    The cause came to a hearing in Januao' 1836. Whereupon the chancellor, — declaring his opinion that the deed of marriage settlement conveyed the property therein mentioned to the separate use of the intended wife, and gave her, at all times during the coverture or after, the absolute right of disposition, either by deed or will; that a valid and perfect title to the premises in question might be conveyed to the defendant by Beckham and wife; and that such title was sufficiently conveyed by the deed from Beckham and wife, with general warranty by the husband, and the privy examination and acknowledgment of the wife, which had been tendered to the defendant and filed in the cause,— ^therefore decreed that the articles of agreement be specifically executed by the said defendant. On the petition of Williamson, this court allowed him an appeal from the decree.
    A. Hunter, for appellant.
    Cooke, for appellee.
    
      
       Wile's Separate Estate — Mode of Alienation Provided in Instrument — Effect.—For the status of the Virginia decisions on the question whether the specification of one mode of disposing of a wife’s separate estate, without negative words, by the instrument creating the estate, is to be construed as intended to exclude all others, on the principle of the maxim, expressio unius est exclusio alterius, see foot-note to Lee v. Bank of United States, 9 Leigh 201. In this note, the question is discussed at some length, and it is shown that the rule laid down in the principal case — that, where the instrument creating the estate designates one mode of alienation, the wife is confined to that method of disposing of the estate, though other modes are not expressly negatived by the instrument —is not in accord with the great weight of authority, and is in direct conflict with what seems now to he the settled rule in Virginia and West Virginia.
      See further, on this subiect, foot-note to Justis v. English, 30 Gratt. 565; monographic note on ‘Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159, where the Virginia and West, Virginia cases are collected.
      For cases citing the principal case on this subject, see Lee v. Bank of United States, 9 Leigh 211, 213, 214, 216, 217, 218, 220; Nixon v Rose, 12 Gratt. 432; Frank v. Lilienfeld, 83 Gratt. 395; Justis v. English, 30 Gratt. 571; Christian v. Keen, 80 Va. 373; Green v. Claiborne, 83 Va. 390, 5 S. E. Rep. 376; Radford v. Carwile, 13 W. Va. 649, 650, 651, 652, 653, 654 (on this last page, Judge Green, who delivered the opinion of the court, said tha,t, since the decision in Woodson v. Perkins, 5 Gratt. 345. he could hardly think that the Virginia courts could sustain the views expressed by Judge Tucker in the principal case).
      In Lee v. Bank of United States, 9 Leigh 212, 213, Judge Cabell, with whom Brookenbrough concurred, approved the result reached in the principal case, but he distinguished it from the case at bar on the ground that in the principal case there was as clear intention to exclude all other methods of alienation than that expressly designated in the instrument, as if the grantor had used express terms of positive exclusion. Judge Cabell distinguished the principal case from thé case at bar also on the ground that, while, in the .former case, the wife had a contingent interest dependent on the event of her surviving her husband, in the latter, no such circumstance existed.
      The remaining judge — Tucker, p„ — in his dissenting opinion, said that, according to his view of the case it steered “clear of the doubtful question which has been so much argued, and which is supposed by the counsel for the appellants to have been settled by the case of Williamson v. Beckham, 8 Leigh 20.” Judge Tucker in this same opinion, thereafter refers several times to the principal case, saying that he thought it clear that the case at bar was not within the principle of the decision of Williamson v. Beckman.
      
      ■ But, while the court in Lee v. Bank of United States, 9 Leigh. 200, draws a distinction between the principal case and the case at bar, in Burke’s Separate Estate, p. 35. it is said that tile two cases (Williamson v. Beckham and Lee v. Bank of United States) are in irreconcilable conflict, and have always been so regarded
      Same — Power of Disposition — Restraint of. — In Virginia, the right to restrain or interdict the power of the wife to dispose of her separate enlate has been expressly recognized in several cases. Nixon v. Rose, 12 Gratt. 431, citing the principal cáse, West v. West, 3 Rand. 373. Vizonneau v. Pegram, 2 Leigh 183, and Lee v. Bank of United States, 9 Leigh 200. To the same effect, the principal case is cited in Radford v. Carwile, 13 W. Va. 652.
    
   TUCKER, P.

This case turns upon the question whether a married woman can convey her separate estate by any other instrument, or in any other manner, than is prescribed by the marriage settlement.

An examination of the cases in the court of chancery in England results in the conviction that they are too unsettled and contradictory to afford any sure and satisfactory guide to us upon the subject. They have been reviewed with very great ability by chancellor Kent in the case of The jlethodist Church v. Jaques, 3 Johns. Ch. Rep. 77, and by chancellor Desaussure in the case of Ewing v. Smith, 3 Desauss. 417. It would be useless to attempt to add anything to the full view thus presented of the english authorities by these conflicting opinions. It is somewhat remarkable that each should have been reversed by their respective appellate tribunals, which are thus as much in conflict as the chancellors themselves, although on different sides.

In this conflict of decisions, the question is presented to us for the first time in our courts, accompanied by the warning afforded by the repeated regrets of the ablest judges that so much countenance had been given to the opinion that a feme covert may alien even her separate property in realty in a mode different from that prescribed by the deed of settlement. What course is it expedient for us to pursue? The most profound respect has always been paid, and wisely paid, by this court to the able and well reflected opinions of british judges, whether anteriour or subsequent to the revolution. *The ability of the bench and of the bar, and the care and diligence which is bestowed on the consideration of every case, render their •decisions our safest guides in the pursuit of the true principles of our jurisprudence, because it conforms so nearly with their own; and it must be remembered that though we search for precedents to discover and illustrate principles, the law depends at last upon principles, and not upon the precedent. It is therefore of no importance from what fountain of light we derive our illumination, though we are only bound by the decisions of our own tribunals, where they have been frequent and uniform, and have definitively settled either a canon of property, or the principles of contract, or some rule of practice. The decisions of the english judges are not binding upon us; and where those decisions are opposed to their own reason and judgment, we should look upon them rather as beacons to warn us from danger, than as land, marks to guide us in our path.

It is admitted even by the english cases, that if the deed or will, by which the separate estate is created, expressly negatives any other mode of disposition than that which itself prescribes, the general power of disposition is taken away. See 3 Desauss. 447. Now it is very singular that the courts should in any of the cases have rejected the well established principle or maxim of law', expressio unius exclusio est alterius. When the contracting parties expressly provide the manner in which the disposition shall be made, what else can be inferred than that the feme covert is to be confined to the mode prescribed? In the present case the husband settles his own property on the wife, to her separate use during the coverture, with power of appointment by will, and for want of appointment, to her heirs, that is, in absolute property. Here the husband had a manifest interest in limiting and controlling the disposition of the property, by prohibiting the alienation during the *life of the wife. And according to the maxim citjus est dare ejus est disponere, he had a right to prescribe the terms on which, during the coverture, this right should be enjoyed and its disposition effected. He has done so, and has prescribed an appointment by will, as the mode of disposition. Confining the wife to this mode, the property would remain during his life for her use, and would thus contribute to aid him in sustaining the burdens of the married state. It moreover protects the property not only from his prodigality and the accidents of trade but from her imprudent disposition of it to the prejudice both of himself and her, and secures to her a provision for her support in the event of her surviving him, which may fairly be presumed to have been a main design of the settlement. In the case of Richards v. Chambers, 10 Ves. 580, 586, sir William Grant observes, in reference to an antenuptial settlement of the wife’s property, “The wife while sui juris means to make a provision for herself in the event of her surviving her husband. That is the case before the court. Such are the terms upon which alone she chooses to contract, while in a condition to exercise her free, unbiassed judgment. She wished to .put that out of her reach, and secure it from the effect of the influence and solicitation into which she may afterwards be exposed. Why should a court of equity, professing to watch over the interest of married women, say that a woman about to marry shall not be allowed to secure to herself this kind of protection? She has it, if the court will not interfere. She is deprived of it, if the court, upon her consent while covert, annuls the contract made for her benefit while sui juris.” And accordingly in that case he denied the power of the court, upon her privy examination, to transfer the property. The case of Lee v. Muggeridge, 1 Ves. & Beam. 118, decided upon the authority of Richards v. Chambers, and very much like it in all its traits, was of this nature. The trust was to the separate use of the wife for *the joint lives of herself and husband, and from the death of the husband, in case she should survive him, to her and her heirs or assigns, with a power to her to appoint by will if she should die in her husband’s lifetime, and in default thereof, then over. The court decided that the express provision that the property should belong absolutely to the wife in the event of her surviving, implied an exclusion of the power of appointment during coverture. If these two cases are not overruled, as I am inclined to believe they are not, then they are in fact decisive of this, as they are very parallel. But the truth is, the cases are so numerous and so conflicting that it is difficult to say whether they do or do not clash with some subsequent decisions. Considering the case at bar independent of them, we may at least observe that the remarks of the master of the rolls, just cited, are not only altogether just, but they apply not more fully to a settlement made by the husband of his wife’s property, than to a settlement made by him of his own property, obviously to place it beyond his control, — • to secure to the wife the separate use of it, so that while the fund would be protected from his prodigality or losses in business, it might be applied by her to the joint comfort of them both during coverture, and be preserved in the event of her surviving her husband, as a competent support for herself. To secure these objects, she is confined to a disposition by will, which cannot take effect until her death ; until the main purposes of the trust shall have been effected. I say confined; for I can in no other sense understand the parties in providing a particular species or mode of disposition only. Yet all these objects are to be frustrated by giving to her the power to dispose by deed, which was never contemplated. She may wantonly give away the personalty, with or without the consent of the husband; or she may, under his influence and persuasions, debar herself of the realty, by joining him in a sale of it, and *the proceeds may be swallowed up in the vortex of prodigality and ruin, against which it was designed to protect it. The provision thus made for her after his death will be gone, and the heirs for whom the estate was designed will be defeated also. They, it is true, have no claim as purchasers, no provision being here made for children. But if, according to the opinion in West v. West’s ex’ors, 3 Rand. 380, a wife cannot devise her separate real estate to the prejudice of her heirs, without an express power, even with the consent of her husband, there would seem to be strong reason for denying the power of disposition by deed, to the prejudice of the heir, unless an express power be given by the instrument under which she claims her separate property.

Upon the best reflection which I can give to this matter, I am of opinion that a feme covert, holding separate property in real estate by deed or will prescribing a peculiar mode of disposition, cannot dispose of it in any other mode, although the deed or will does not negative such other mode expressly.

It seems to be doubted whether the provisions of this settlement do not authorize an appointment by deed, as well as by will. But to give .it this construction we must interpolate words, and thus make a deed instead - of construing one. Though the expressions are awkward, yet they are not insensible. It is provided that she shall have power, by a written instrument under hands and seal, attested by three witnesses, in the natuie of an appointment .of a will and testament, to dispose &c. and it is supposed that the word of should be or, so as to give the power of disposing bv instrument sealed and attested, or a last will and testament. Even this is awkward, and-.we must, to avoid it, interpolate also the word by, so as to read or- by last will &c. This, I think, is making very free with the deed. We make a disjunctive where there is .none, and 'thus create two powers *out of one. I cannot assent to it, and the rather, because if the power to dispose by deed be given, it may be exercised without privy examination and without the consent of the husband; thus on the one hand enabling the wife to convey away from herself during the coverture the property received from her husband, without his consent, and on the-other subjecting her to his influence, though the very object of the instrument was to place her above it. As to the instrument in the nature of a will being required to be attested and sealed, that might have been provided either through ignorance and want of skill in the scrivener, or it may have been designed to prevent her executing a mere olograph will without witnesses, which her husband might unduly procure from her. The precautions taken by herself and her friends would seem to have been well founded, when we see her, in one month after marriage, giving up her entire estate in the property to her husband.' The more I consider the matter, the more am I satisfied that we should not meddle with the phraseology of the deed, but decide upon the instrument as we find it.

The consequence of this opinion is, that the decree is erroneous and must be reversed,-and the bill dismissed with costs.

Decree reversed, and bill dismissed.  