
    Watkins vs. Watkins' heirs and administrators.
    
    A.husband and wife agreed to live separate. The husband conveyed one third of the eslate to trustees for the sole use, support and maintain-anee of his wife. The trustees covenanted, that the wife should not claim any other portion of the estate, and if she did, and obtained the same, they covenanted to indemnify him, his heirs, executors, &c. The husband afterwards died, leaving a large real and personal estate. Held,
    1st. That the articles did not bar the wife of her dower 6r distributive share in fier husband’s estate.
    2d. That she could not hold the property conveyed by the deed of trust, and also be entitled to dower and distribution, but that she had the right to elect which she would take.
    3d. That by filing a bill for dower and distribution, she elected to take the latter, and thereby abandoned the provision in the deed of trust.
    4th. That she was not accountable for the property which had been exhausted for her support up to her husband’s death.
    6th. That she was accountable for property exhausted or used by her since his death. And
    6th. That the trustees ought to be parties to the suit.
    The bill states, thatin the year 1800, the complainant intermarried with Thomas G. Watkins, who received from her father property to the amount of ten thousand dollars, as her marriage portion, mostly in land, of which the land in which she claims dower is a part. p The bill further states, that at the time of said marriage the said Thomas G. Watkins was nearly destitute of property, and that he died in January, 1830. Two. years had elapsed at the time of filing this bill from the granting of administration on his estate. The prayer of the bill is for the assignment oí dower in the real estate of her deceased husband, situated in Jefferson county in this State, and for her distributive share of the personal estate. Thomas G. Watkins died intestate, leaving no children. The defendant, O. R. Watkins, is the administrator on the estate of T. G. Watkins, and the other defendants are the brothers and sisters of the whole and , ~ , halt blood ol the intestate.
    The answers of the defendants admit, that the land out of which complainant seeks to be endowed, was a part of her marriage portion, but the defence set up by them is, that in the lifetime of T. G. Watkins a separation took place between him and the complainant, and that on said separation he conveyed certain property to Samuel Jackson and O. B. Ross, as trustees for her, and that said trustees covenanted, in consideration of such property and of the separation, to keep him indemnified. And they covenanted that she should not claim any portion or part of his property, other than that conveyed by the deed of trust; and if she did, and obtained it, they covenanted to pay to said Watkins, his heirs and executors its full value, &c. For other facts, see the opinion of the court.
    
      John «á. M’Kinney for complainant.
    The principal question in this case is, does a voluntary separation between a husband and wife, a conveyance by the husband of property to trustees for her use, and a covenant on the part of the trustees to keep him indemnified against the claims of his wife, constitute any bar, legal or equitable, to her obtaining dower in the real estate, and a distributive share of the personal estate of .her husband? It will readily be admitted, that this case belongs to a class of cases the determination of which are vastly important to the well being of society; and courts, whenever they have been called to set in judgment in cases of this kind, have ever felt it to be their duty to investigate them with more than ordinary deliberation.
    What is the proposition laid down in this case by the defendant’s counsel? It is this, that a court of equity will specifically execute, in favor of the personal representatives and heirs at law of the husband, against his widow, a contract made by her with her husband, while she was a feme covert, and, in contemplation of law, incapable of matins; any valid contract with any one, es- . , , , , i , , . ’ . pecialiy with her husband, under whose coercion she is supposed- to have been. Can this proposition be maintained? Can it be maintained on those’ principles of^ justice, that are supposed to govern the proceedings in a court of conscience? Can it be maintained in the positive precepts of law that govern the proceedings alike of courts of law and equity? Can it be maintained according to' those technical rules that have been established in courts of equity so firmly that they cannot now be shaken ? On the part of the plaintiff it is believed that it cannot be done.
    If the contract, said to have been made between Mrs. Watkins and her husband, that they should live apart, and that she should make no claims upon the estate, is to be specifically executed, it is to be executed because it is binding on her. It is vain to say it is to be executed, because it is binding on the trustees; for the remedy which the defendants have against them is a legal remedy, if any they have; and there is not the slightest pretence for asking a Gourt of equity to specifically execute the contract against the trustees, as the claim against them can never arise until the complainant shall have got the part of the estate to which she is legally entitled; and that is then the measure of damages to be recovered at law against them, supposing them to be at all liable.
    It is admitted, on the part of complainant, that cases can be found in the books where courts of equity have specifically executed contracts between husbands and trustees on the part of his wife, relative to, a separation. But this has only been done at the suit of the wife, and never at the suit of the husband. Maddox, in his treatise on chancery proceedings, vol. 1, page 306, says: ‘The court has never decreed a separation between husband and wife, and Compelled a husband to pay a separate maintainance to his wife, without some agreement for that purpose. But Lord' Hardwicke seems, though reluctantly, to have thought such an agreement might be decreed, and there are cases that enforce that doctrine. In one case, after great consideration, it was determined that articles of separation may be specifically enforced at the suit of the wife, and this though the husband offered, by his answer, to receive his wife again; but that decision, (referring to the case of Grith vs. Grith, 3 Brown’s Ch. Cases,) has been disapproved of by subsequent chancellors, though not positively overruled. These marriage cases, in which the court has acted upon an agreement to separate, have been, in general, where a third party has intervened, and the agreement was not merely between the husband and the wife, or where a fortune has accrued to the wife after the séparatioh, or where there has been trust property, obtainable only in a court of equity. The wife certainly is not bound in any degree by a deed of separation, and a specific performance could not be enforced against her.”
    If the emphatic language here used by Mr. Maddox, be warranted by 'the authority of decisions in a court of chancery, “that the wife is certainly not bound in any degree by a deed of separation, and that a specific performance -could not be decreed against her,” then this controversy is at an end; for it cannot be said that she is bound, so as to be deprived of her vested rights, dower, and a distributive share, and yet that she is not bound; that a specific performance cannot be enforced against her, and yet that it shall be enforced in the most rigid and effectual manner. These propositions are wholly irre-concileable. It is perfectly just and equitable that the husband should be bound by the stipulations in a deed of separation, when third persons have bound themselves to indemnify him against the claims of his wife for maintainance, and against debts contracted by her, because he is in a situation to do legal and binding acts. , Not so with the wife; she can do no binding act; all her acts are void. The same consequence results from the protection the ]aw affords to infants; the adult is bound by his contract with the infant, while, at the same time, the infant (except for necessaries) is not bound at all. Another reason why articles of separation will be specifically executed at the suit of the wife, and not at the suit of the husband, is, that the causes producing the separation, for the most part, proceed from the husband. But another reason, and a very strong one, why the court will execute, specifically, articles of separation at the suit of the wife, and not at the husband, is, because he can institute a suit at law, and has a remedy purely legal against the trustees on their obligation; and equity will not interfere where there is a legal remedy; but the wife is incapable of suing at Jaw, and has in fact no remedy; for granting that her trustees could sue at law, they may be unwilling to do so. And what remedy has she to compel them to sue? None. They may be unfaithful, and how but by the aid of a court of equity can she compel them to do their duty. The same fatal necessity that compelled her to quit her husband’s house and seek protection elsewhere, may have induced her to agree to the nomination and appointment of trustees, of whom she did not approve. She is, in contemplation of law, just as incapable of choosing trustees as she is of doing any other valid or binding act. They may be willing to do their duty or they may not; they may be her choice or they may not; but it is because there is an uncertainty about all these matters, that the court will grant to the wife that aid and protection it will not grant to the husband. It is on account of the utter helplessness of the wife that a court of chancery lends her a helping hand, that is never in such cases extended to the husband, who has his legal remedy and is fully competent to enforce it.
    In Lord St. John vs. Lady St. John, (11 Yesey, 526,) Lord Eldon, speaking of the deeds of separation exe- ’ cuted by husband and wife, and trustees, says; “Upon this particular case, the questions ,are, 1st, are these deeds good at law? 2d. Are they to be enforced in equity? 3d. If not good at law, are they to be delivered up jn equity? If they are good at law, I sec no reason at present to say they are not good in equity. But as against the wife, it is impossible, either in law or equity, to hold them good, for she cannot execute any deed.”
    “I have frequently,” says Lord Eldon, “asked Mr. Justice Buller, who found it difficult to answer, how, if she was in the same situation as a feme sole, she got into that situation. It is admitted that, until separated, she cannot form, or make herself liable to any contracts; yet it is asserted, that it is competent to her, before she is in that state, to remove herself by contract out of the state in which she is, into that in which she will, for the first time, become capable of making a contract.” The whole opinion of the chancellor, in this case, of which the above is a part, is a strong and unanswerable argument to show that the wife is not, and cannot be affected, either in law or equity, by a deed of separation.
    The same question that Lord Eldon asked Judge Bul-ler, may be asked in this case. If Mrs. Watkins could, while a feme covert, make a contract by which she is to be deprived of dower, &c. how came she to be in a situation to be able so to bind herself? If it be said she acted by trustees, the answer is, if she could not bind herself by her act, how could she appoint trustees to bind her? If she could not act by herself, she could not act hy another.
    See also Marshal vs. Batten, 8 T. Rep. to the sai^te point.
    In the case of the Duke of Bolton vs. Williams, 2 Yesey, 156, a meritorious creditor was before the court, seeking to enforce in equity a contract of a married woman; and if that could not be done, to obtain a decree for the restitution of the money they had paid; but in that case Lord Roslyn laid down unequivocally this position, “That equity will not make good against a married wo man, a contract on which she cannot be sued at law. 11, says the chancellor, they (the creditors) fail at law, it must be on the ground that the contracts are void at law; that the advancement of this money to a married woman, (money fairly advanced in the purchase of an annuity, which was void because the memorial was not properly worded,) cannot be the subject of a suit at law. I do not say it will be so; but if they fail, that must be the ground. Would a court of equity make good against a married woman, a contract bad at law, because incapable of producing an action against her? I would consider much, (says the chancellor) before I would advance the remedy further than the law gives it against a married woman.”
    In this case, Mrs. Williams, a married woman, living in England, separate and apart from her husband, who was out of the kingdom, was entitled to a rent charge of three hundred pounds per annum, out of estates of which the Duke of Bolton was tenant for life, to her separate use. To relieve her necessities, she pledged this fund, and received two thousand pounds; she then conveyed to the persons so advancing this large sum of money, the rent charge aforesaid, by way of annuity, which would have been all well enough, if a proper memorial of the grant of the annuity had been enrolled, as the law in that case directed; but, because, that had not'been done, the whole was void. The creditors ask the court to declare the annuity well granted; and to supply any defect that^ might be in the enrollment. That cannot be done, says the chancellor. Then, say the creditors, give us back our money, as the fund is now under your control. Go to law, says the chancellor, if you think you can succeed there; I do not think you can; but if you cannot succeed at law, a court of equity cannot help you against a married woman. And, if the chancellor said so to honest creditors, of whom he remarked, that he felt a desire to relieve what would he have said to vol- . , . , . . , , unteers, as in this case, who have no merit; who, it they can avail themselves at law of any stipulation that has been made by the complainant, whilst a married woman, be it so; but if they cannot, equity will not help them. Now, to apply all to the present case. Suppose Dr. Watkins, in his lifetime, had sued at law, on the contract said to have been made between him and the complainant, to live separate, could he have enforced the contract at law against his wife? Nobody will pretend to say he could. Suppose he had applied to a court of equity, would that court have aided him? No. The answer would have been, go to the law; if you succeed there, well; but if you do not, we cannot help you. Then do his administrator, and brothers and half brothers, &c. (the present defendants) stand in any better situation than he would have done? Surely no one will say so. It follows, clearly, that the defendants cannot succeed in the defence they have set up, to bar the complainant of her dower, and distributive share; and if they have a remedy against the trustees, it is a legal one, and they must seek for it in a court of law.
    In the case of M’Cauly vs. Phillips, the same doctrine is recognized. M’Cauly and his wife separated; during the separation they agreed upon the division of money in the funds; afterwards the husband died; and, after his death, the court held, that she was not bound by her contract, entered into during coverture. In delivering his opinion in the case, the Master of the Rolls uses this strong language:
    “But no interest of hers will be bound but by her own consent, not taken by the negociation of friends, but by the court itself. Even if the trustee, after a bill filed, and particularly after a decree for a proposal, was to pay, the court would hold it a payment by wrong, and would set it aside.” Again, he says, “Is it the habit of this court to take the consent of a feme covert, signified. by the negotiation of friends? Even after the Master has approved of the proposal, (for a settlement) if the court does not approve of it, they may examine the wife herself; and only by the means of a sole and separate examination. Therefore, it is clear, .all that passed out of court was not binding on her.”
    Can any language be stronger than this, to the point we contend for? What is the argument on the other side? That Mrs. Watkins, when a 'feme covert, by the negociation of friends, who constituted themselves, or whom she constituted trustees, gave her consent in such a manner as to be binding on her in a court of chancery, that she would give up her right of dower, and her distributive share of her husband’s estate, in consideration of some property conveyed to these trustees for her use. The Master of the Rolls, in the case cited, says this cannot be done.
    The same doctrine is recognized in the case of Hyde vs. Price, 3 Yesey, 443; and also in the case of Legard vs. Johnston, 3 Vesey, 358 to 361.
    In the case of Leke vs. Beresford, husband and wife had (for a most meritorious consideration, viz. money advanced to furnish them with the necessaries of life,) assigned the wife’s interest in bank stock, which had been vested in trustees for her separate use. Afterwards, she and her husband separated, and he went abroad, and the creditor, who had advanced the money for the benefit of husband and wife,- filed his bill to obtain the benefit of the settlement, and the court refused to grant the relief, as against the wife, her assignment to the contrary notwithstanding. 3 Yesey, 506 to 510.
    In Wright vs. Rutter, 2 Yesey, 675-6, the court says, “It is very clear, the wife’s joining (in the deed of assignment) is nothing.” Again, in the same case, the court says, “The clear distinction is this, that in point of law, and the consideration of this court, a married woman has no disposing power, though she has a disposing mind. As to any property she has, the law and this court consider her so much under the coercion of her husband, that she cannot exercise any disposing power. Now, I suppose, it will not be denied, that from the moment of marriage, the wife’s right to dower and a distributive share, is a vested right in her, of which, during her coverture, she has no disposing power.”
    Ellbank vs. Masterton, 5 Vesey, 737, shows that a court of equity will look at the fortune brought by the wife to the husband, in adjusting her rights.
    Brown vs. Carter, 5 Vesey, 876, shows that the court will carefully maintain the vested rights of wife and children.
    Courts of chancery have the same powers as are exercised by the ecclesiastical courts of England, as to decreeing a separation. When an application is made to the ecclesiastical court for a separation, the court will not look at any articles of separation, entered into between the parties, but only at the causes, adultery or cruelty, and decree accordingly. Lord St. John vs. Lady St. John, 11 Vesey, 532.
    Mr. M’Kinney also insisted, that there was no proof of the articles; that they were not properly in issue; and that the trustees ought to be made parties.
    
      Cocke and Williams, for defendants.
   Catron, Ch. J.

delivered the opinion of the court.

Susan W. Watkins sued in the chancery court, by bill, for dower and a distributive share of the estate and goods of her late husband, Dr. Thomas G. Watkins, who, in the year 1829, died intestate, and without issue. The brothers and sisters of Dr. Watkins are made defendants, being the heirs and distributees: his administrator, Os-burn R. Watkins is also made a party.

The right to dower and distribution is resisted on the part of the defendants, on the ground, that at his death Dr. Watkins and his wife lived separate; and that in January, 1825, Dr. Watkins had entered into a covenant with Samuel Jackson and Oliver B. Ross, and the father and mother-in-law of Mrs. Watkins, that he would vest in them, in trust, eight negroes, a tract of land of one hundred and fifty-one acres, in Virginia, a horse, and his household goods for the use and benefit of his wife, Susan W., for her separate maintainance; and that he would pay over to the trustees, for this purpose, one-third part of all his outstanding debts, and so provide, that his wife should have the full one-third part of hiá estate, real and and personal. The eight slaves and the household goods, seem to have been delivered over to the trustees, and enjoyed by Mrs. Watkins, but no further conveyances, other than the covenant, seem to have been executed. O wing to a vexatious contention about minor matters of detail, of no consequence, the proof of the only matter of defence, the settlement for separate maintenance, has been almost entirely overlooked; there is enough, however, apparent for the court to give a direction to the cause.

The articles are set up in bar of dower, and in bar of the distributive share claimed, on'the ground that if they have not been fully executed, the complainant has it in her power to cause it to be done; and to this effect, a suit was brought against Dr. Watkins, at law, upon the covenant, in the circuit court of Greene county, in the name of the trustees, and is still pending against O. R. Watkins, the administrator, and in a state of prosecution. The chancellor thought the articles a bar to dower and distribution, and dismissed the bill. .

The tract of land of which dower is claimed, was conveyed to Thomas G. Watkins, in 1803, by Samuel Jackson. When the fee vested in Thomas G. Watkins, the right of dower vested in his wife as a legal estate. Young’s heirs vs. Combs, 4 Yerg. Rep. 218. By the covenant of 1825, Mrs. Watkins did not part with her vested title. She was then a feme comt-and incapable of binding herself, nor did she attempt to do so. Her legal right to have the dower estate of one-third partitioned to her, pursuant to the 9th section ol the act of 1784, ch. 22, is not open to question.

How is it as to the distributive share? Mrs. Watkins has made no contract releasing her right as a distributee of the goods of her late husband. Prima fade, her right is unembarrassed. Were the articles of agreement of 1825 entered into by Dr. Watkins, his wife, and the trustees, to be in lieu and satisfaction of her dower and distributive share, in case of his death, the wife living? The articles seem not to have contemplated such a contingency, nor is any express provision made, that the surrender of one-third of his estate for the benefit of the wife shall be in satisfaction of dower or distribution: the principal end the parties were looking to, was a competent provision for the separate maintainance of the wife during coverture. Yet the covenant, on part of the trustees, renders them liable to the heirs, &c. of Dr. Watkins for any claim or demand the wife may set up, or cause to be enforced against the two-thirds of her husband’s estate retained by him. They stipulate that the said Susan W. Watkins shall not at any time thereafter claim or demand any part of the estate of the said Thomas Gr. Watkins, or any other or further support or maintainance from him than what is herein before mentioned, and that she, nor her heirs, shall not do any act by which the said Thomas G. may be charged with any debt or duty in consequence of his being the husband of the said Susan W., or,' in case she shall prefer any claim or demand against him, or his heirs or assigns, for any portion of his estate, other than what is secured to her in trust for her use and benefit, then, and in such case, the said Jackson and Ross, their executors, &c. shall well and truly pay to the said Thomas G-. Watkins, his heirs, executors, &c. the full value of any property so claimed and obtained by the said Susan W., or for any debts or demands for which she may render him liable. The trustees have no control of Mrs. Watkins’ acts, yet the court will see them secured from injury, precedent to affording the relief pray'ed, so that they may not be sub-jectto the suit of Dr. Watkins’representatives, by force of the decree and process of the court.

By her suit for dower and distribution, Mrs. Watkins has abandoned all claim to any benefit under the provision made for her use by the covenant of 1825. 1 Eq. Ca. Ab. 218: Cro. E. 128. This she had the right to do after becoming discovert. From the covenant, it is clear she is not entitled to both. This suit is a conclusive. election to abandon the articles, and Jackson and Boss, holding as naked trustees, hold for the heirs and administrator of the estate of Dr. Watkins. They must be made parties to this cause, either by the complainant or try cross bill by defendants, by the order, and at the direction of the chancery cpurt. For so much of the property as has been applied and exhausted for the separate, maintainance of Mrs. Watkins, up to the time of her husband’s death, no account will be rendered or required; but for all the property not so applied, and for all on hand at the death of Dr. Watkins, the trustees will account; for that on hand, by the delivery of the property. But if used by Mrs. Watkins since his death, she will be' held to account for it in the same manner as if no provision had been made for her, and the articles had no existence, and the amount used will be deducted from her distributive share, with the rents of the Virginia land, hire of negroes, &c. This court apprehends, she will, in fact, be the only person called upon to account, after the property on hand is delivered to thé administrator. The covenants resting on Jackson and Ross, and on the administrator and heirs of Dr. Watkins, will be, by the final decree, cancelled; and that this cause may be correctly proceeded in, the decree dismissing the bill is ordered to be reversed, and the cause reminded to the chancery court, to be heard, as directed by this opinion, of which a copy will be transmitted to the court below.

Decree reversed.  