
    *Roper and Another v. Wren Adm'r &c.
    February, 1835,
    Richmond.
    Marriage Settlement — Wife’s Right against Husband— Case at Bar. — By deed of marriage settlement, executed before marriage, the husband conveys real estate to trustee, to use of wife for Ufe, and upon trust to permit the wife to take the rents and profits, during the coverture, to her sole and separate use, in full satisfaction of all right of dower; the husband, during the coverture, receives all the profits, and applies them to his own use, though the wife frequently demands them, and he acknowledges they are due to her, and promises her that they shall be paid; but he dies without paying them: upon a bill by the wife and her trustee against the husband’s adm’r. Held, she is entitled to an account of the rents received by the husband in his lifetime, and a decree for the amount thereof out of the husband’s estate.
    
      Interest. — Interest sliould not be al] owed on estimated rents and profits.
    By deed of marriage settlement between Robert Robinson and Agnes Parks, executed before the marriage, and dated the 31st'May 1815, Robinson conveyed a tenement he held in the city of Richmond, to Eldridge Roper in fee, upon trust, from and after the intended marriage, for the use of Agnes the intended wife and her assigns, for and during her life, remainder to the heirs of the husband; “and upon trust to permit the wife to take and receive the rents and profits to her sole and separate use, without being subject or liable to the debts or incum-brances of Robinson;” and it was covenanted, that this provision should be a £ull satisfaction of all rights to dower, which the wife might acquire by the marriage. The marriage took place. The husband died, the wife surviving him; and administration of his estate was committed, by the hustings court of Richmond, to Wren, sergeant of the city.
    A bill was exhibited in the superiour court of chancery of Richmond, by Roper the trustee and Mrs. Robinson, against Wren, the administrator of the deceased husband, setting forth the provisions of the deed of marriage ^'settlement, and alleging that Robinson the husband, in his lifetime, received and appropriated to his own use, all the rents and profits of the property settled by the deed; but the wife constantly remonstrated against this, and repeatedly demanded of her husband, an account of the rents and profits by him received, and the payment thereof to the trustee, for her sole and separate use; and the husband as often promised, that he would render such account, and make such payment, but never complied with his promises. The bill prayed, that Wren, the administrator, should be compelled to render an account of the rents and profits received by his intestate, and to pay the amount of the same out of the assets of the estate.
    Wren, in his answer, disclaimed all knowledge of the facts alleged in the bill, and called for proof of them.
    Depositions were taken and filed, by which, in the opinion of this court, it was satisfactorily proved, that neither the wife nor her trustee received any part of the rents and profits during the coverture; that Robinson, the husband, received and enjoyed them all; that the wife frequently demanded the rents of her husband, and he repeatedly acknowledged that they were due to her from him, and promised that they should be paid, but he never paid them, excusing himself on account of his being pressed for money.
    The chancellor directed accounts of Wren’s administration of Robinson’s estate, and of the rents and profits of the trust property received by Robinson in his lifetime, in stating which last account, the commissioner charged interest on the rents ascertained by estimate; but, on the final hearing, the bill was dismissed; and the plaintiffs appealed from the decree to this court.
    The cause was argued here, by Claiborne and Scott for the appellants, and Mayo and G. A. Myers for the appellee.
    There was some discussion of the questions *of fact which turned on the parol evidence. The counsel for the appellants, cited Countess of Warwick v. Edwards, 1 Eq. Ca. Abr. 140, pi. 7; Ridout v. Lewis, 1 Atk. 269; Earl Digby v. Howard, 4 Simons 588, 6 Condens. Eng. Ch. Rep. 267; Vizonneau v. Pegram, 2 Leigh 183. The appellee’s counsel cited Powell v.-Hankey, 2 P. Wins. 82; Thomas v. Bennet, Id. 340; Fowler v. Fowler, 3 P. Wms. 355; Moore’s ex’x v. Ferguson, 2 Munf. 421.
    
      
      Principal Case Distinguished. — In Lyon v. Zimmer, 30 Fed. Rep. 406, it is said: "Roper v. Wren, 6 Leigh 38, was a case of the distribution of the husband’s estate, in which the question was not between creditors and the wife in the husband’s lifetime. The wife’s claim was allowed because she had frequently demanded and had never conceded any part of the rents and profits due her, and collected by her husband; one oE the judges saying- that the case was the more clear because there were no creditors to lose by the decision."
    
    
      
       interest. — See monographic note on "Interest” appended to Fred v. Dixon, 27 Gratt. 541.
    
   BROCKENBROUGH, L,

after stating the provisions of the marriage settlement, and the facts proved by the parol evidence (as above stated) said — -I cannot well distinguish this case from that of Ridout v. Lewis. In that case, the wife received only two thirds of the pin-money settled on her, for several years; she complained that she was paid short, and the husband promised that she should have it at last. Lord Hard-wicke held, that when a wife accepts a payment short of what she is entitled to, or lets the husband receive what she has a right to receive to her separate use, her consent will be implied to that method of proceeding, but that her complaint that she had not her full allowance, and his promise, that she should have it at last, destroyed the implication, and the promise that she should have it at last, was an undertaking on his part that she should be paid the arrears. In the case before us, it does not appear that the wife received any part of that which was settled on her to her separate use; but she frequently demanded it, and the husband as often promised it to her; so that her consent to part with it to him without reimbursement, cannot be implied. I do not think this case comes within the rule in Moore’s ex’x v. Ferguson. There, the wife did not, during the cover-ture, exercise any act of ownership over the property, nor interfere with the husband’s receipt of the profits: she did not complain of his receiving them, nor demand them, nor did he promise that she should afterwards have them. *'Her consent was, therefore, implied, that her board and clothing, or her support and maintenance, during the coverture, should be deemed an equivalent for the profits of her separate estate.

I am of opinion, that the decree be reversed with costs, and a new account directed; in which, however, the commission'er should not allow interest on the estimated rents.

CARR, J.

I concur with my brother Brockenbrough. It seems that the wife did demand the rents due her, frequently, during the coverture, and the husband always promised that she should have them. There was no waiver of her right, and no acquiescence in the wrong done her, farther than that she did not resort to coercive measures. She gave up dower, and every thing else by the marriage contract. The property settled was to return to the husband’s estate at her death. She is expressly entitled' to the rents and profits, to her separate use during coverture; and where is the law or the justice which shall deprive her of this pittance, because she qhose rather to submit to wrong, than stir up strife with her husband? especially as there are no creditors to lose by this act of sheer justice.

The other judges concurred. Decree reversed, and cause remanded for further proceedings &c.  