
    *Ropp v. Minor & als.
    March Term, 1880,
    Richmond.
    A testator gives one-third of his estate to his son 15, another third to his daughter-in-law A, and the remaining third to said A in trust for his daughter 35, the wife of J, for life, and for the use of her heirs after her death; and then the will empowers and requires the trustee for said I/, “as soon as convenient and practicable after having received the said legacy or proceeds of said devise, to loan out the same at interest, on good and sufficient security, by bond and mortgage on unencumbered real estate, and to apply the interest or income, which shall or may arise, accrue or be derived therefrom, to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support, and comfort of my said daughter 35; or the said trustee may, if she shall in her discretion deem it proper, pay over the income or interest aforesaid to my said daughter 35, semi-annually, in money, on her sole and separate receipt, independent of any interference, hindrance or control of her husband; and the said interest and income shall not be liable or taken for her husband’s debts or contracts, nor be applied to the payment thereof or any part thereof.” By a subsequent clause of the will, the executors were empowered and directed to sell the estate, and after paying debts and funeral expenses, and providing for an annuity for the widow, “pay the three legatees named in the will.” I* was entitled to one-third of a farm called “Greenway,” under tue will, and her husband purchased the other two-thirds from the other two devisees, and in June, 1865, conveyed it to S, trustee, “for the sole and separate use, benefit and behoof of the said I„ during her life, and for her heirs after her death, in the manner and form as set forth and provided in the will” of the testator. The.son 15, to whom all the personal property was given in a codicil, conveyed two-thirds of it by deed to A and 35, to be held on the terms of the will. F, a son of 35, conveyed his whole interest to her ^separate use, with power to dispose of it as a feme sole. In April, 1871, J and 35 his wife, executed a note for $2,000 to R, and they and S, the trustee, on the same date, executed a deed of trust on “Greenway” to Jan-ney, trustee, to secure said debt. On a bill filed by R to enforce the lien of said deed of trust. Hei,d:
    1. Wife’s Equitable Separate Estate— Power as to Corpas.
      
       — 1, had no power to dispose of, charge or encumber the corpus of the estate derived under the will of her father, and under tile deeds for her benefit (except such, if any, as was acquired under the deed of her son F) nor to anticipate the profits, income or interest which might arise or be derived from said estate, so far as they might be required for her comfortable support; and the lien o-f the deed of trust to Janney, trustee, extends, and can be enforced, only on any excess of profits beyond that necessary for her support, derived from “Greenway,” if any, and the interest conveyed by the deed of F, the son, if that was any. Nor can the subsequent diseoverture of L,, per se, give any greater force or effect to her prior engagements than existed during the coverture.
    2. Same — Construction of Will. — Under the will, the whole estate of the testator was equitably converted into money, but whether “Green-way” is treated as equitably converted into money, or as realty, the estate of L, and the rights of the plaintiff to enforce his lien thereon remain the same.
    «*§. Same — Same—Jn« Diaponendi. — If by a fair construction of the whole instrument creating a separate estate in a feme covert, the jus dis-ponendi, and incidental power to encumber and charge the estate, to an extent involving alienation, be inconsistent with the plan and scheme of settlement, and the exercise of these powers would defeat the plain intent pervading the instrument, they must be considered as much forbidden as if expressly denied. Bank of Greensboro’ v. Chambers, 30 Gratt. 202.
    This was a suit in equity in the circuit court oí Loudoun county, brought in September, 1876, by Samuel Ropp, to subject certain real estate which had been conveyed in trust to secure a debt of $2,000, evidenced by a single bill dated the 12th of April, 1871. and payable two years after date, with interest payable annually *al the rate of twelve per cent, per annum, and executed by John W. Minor and Louisa F. Minor. The deed of trust to secure the payment of this bond bore the same date, was executed by T. Parkin Scott, as trustee of John W. and Louisa F. Minor, and by them, [to C. P. Janney as trustee, and conveyed a tract of land in the county of Loudoun containing five hundred and fifty-five acres, known as “Greenway.”
    This land had been the land of Charles J. Catlett of the county of Loudoun, who died in 1845. By his will which was made in December, 1844, he gave to his wife an annuity of $1,000 for her life, which he made a charge upon his whole estate real and personal. He gave to his son Erskine Catlett and to his heirs, one-third part of his whole estate real and personal, subject to the annuity to his wife; and he gave to Esther Ann Catlett, widow of his deceased son. and to her heirs, another third of his whole estate real and personal; subject to the annuity to his wife. The other third is disposed of as follows:
    “I give and devise one other third part or portion of my whole estate, real, personal or mixed of every kind and description whatever which I may die possessed of or owning, to my daughter-in-law, Esther Ann Catlett, and her heirs, in trust for the use, benefit and behoof of my daughter, Louisa Fairfax Minor, wife of John West Minor, during her natural life, and for the use of the heirs of my said daughter after the death of my said daughter, subject to the annuity aforesaid; and my will is and T hereby empower and require the said Esther Ann Catlett, trustee as aforesaid, as soon as convenient and practicable after having received the said legacy. or proceeds of said devise, to loan out the same at interest on good and sufficient security by bond and mortgage on unincum-bered real estate, and to apply the interest or income which shall or may arise, *accrue or be derived therefrom to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support and comfort of my said daughter Louisa; or the said trustee may, if she shall in her discretion deem it proper, pay over the interest or income aforesaid to my said daughter, Louisa, semi-annually, in money on her sole and separate receipt, independent of any interference, hindcrance or control of her husband or by him; and the said interest or income shall not be liable or taken for her husband’s debts or contracts, nor be applied to the payment thereof, or any part thereof.”
    The powers given to his executors are as follows:
    “And further I do hereby authorize, empower and direct my executors and execu-trixes hereinafter named, constituted and appointed, or such of them as shall or may undertake the trouble and labor of executing this,, my last will and testament, and the survivors or survivor of them, at any time or times he, she or they shall or may deem discreet, proper, convenient and practicable, to grant, bargain, sell and dispose of at public or private sale or sales all or any part or portion of my estate whatsoever, and wheresoever, real, personal and mixed; and upon such sale or sales to execute and deliver to the purchaser or purchasers thereof or of any part thereof, good and sufficient deeds of conveyance, bills of sale or other proper and necessary transfers; and out of the money which shall or may accrue or arise by or out of such sale or sales, in the first place, to pay my just debts and funeral charges; in the next place, after reserving so much of the proceeds or avails of such sale or sales of my estate as aforesaid as that the interest or income which shall or may be derived from such reservation will be sufficient to secure the payment to my wife of the annuity with which my estate is hereinbefore charged, then, in the first place, *to pay the three other legatees named in this my last will and testament as herein-before mentioned and directed. It is to be understood that the annuity hereinbefore bequeathed to my wife is in lieu of her dower, and is to be taken and accepted; and that on her demise the sum herein authorized and directed to be reserved as aforesaid for the purpose above mentioned shall revert to my estate and be divided equally between my three last mentioned legatees in the like manner as herein mentioned and directed.”
    On the day after the will was written the testator executed the following codicil:
    “All the personal and mixed property I may die possessed of or owning, I give and bequeath to my son Erskine; and further it is my will and desire that the sale of my real estate should not take place until after the death of my wife.”
    As soon as the will was admitted to record Erskine Catlett released to the other two legatees two-thirds of the personal estate left to him by the codicil, and it was provided in the deed that the three beneficiaries should take it as under the will. And Esther Ann Catlett declining to accept the trust in favor of Eouisa F. Minor, by an order of the court, John West Minor was appointed trustee in the place of said Esther Ann Catlett.
    In 1846 the tract of land called Greenway, vas divided under an order of the court, each of the three devisees taking a specific part, /■nd bv another decree in another case, John West Minor became the purchaser of the two parts allotted to Erskine and Esther Catlett, which was conveyed to him by a commissioner appointed by the court. And then by deed bearing date the 13th of June, 1865. between John West Minor of the first part, Louisa E. Minor, of the second part, and Thomas Parkin Scott of the third part, after *reciting the provisions of the will of Charles J. Catlett, and the appointment of John West Minor as trustee for his wife, and that John West Minor afterwards with the separate means and estate of his said wife, and intending to secure the same to her use according to the terms of the trust in the said will of her father, purchased the two-thirds of the said Erskine Catlett and Esther Ann Catlett in the land called Green-way, and for the purpose of carrying out said intention hath agreed to execute these presents, and the said Louisa F. Minor hath become a party thereto for the purpose of showing her assent to this deed and the selection of the trustee made, the said John West Minor in consideration of the premises and of one dollar grants and releases to T. Parkin Scott and his heirs all his the said John West Minor’s right, title, interest, estate, claim and demand at law and equity, of, in, to and out of the real estate and property of which Charles J. Catlett died seized and possessed lying and being in the county of Loudoun, and especially the estate and farm known by the name of Greenway, howsoever held or acquired by the said John West Minor, except about ten acres, part thereof, sold and conveyed to T. Gore, &c. In trust for the sole and separate use, benefit and behoof of the said Louisa E. Minor, wife of the said John West Minor, during her natural life, and for the use of the heirs of the said Louisa E. Minor after her death, in the manner and form as set forth and provided in the will of the said Charles J. Catlett as aforesaid.
    A month before this deed was executed, to-wit: by deed bearing date on the 11th of May, 1865, Fairfax Catlett Minor, a son of Louisa F. Minor, reciting the bequest by Charles J. Catlett to Esther Ann Catlett of one-third of- his estate in trust for the use of Louisa F. Minor during her natural life, and for the use of her *heirs after her death, in consideration of natural love and affection, and of ten dollars, granted and conveyed to the said Louisa F. Minor, all the estate of the said Fairfax Catlett Minor in the said devise, and in all the lands, estates and other property referred to and embraced in said devise, both at law and in equity, and in possession, reversion and remainder, to and for the sole and separate property and estate of her the said Louisa F. Minor, independently of. and without the let, hindrance, control or interference of her present or of any future husband, and not to be liable for his debts, contracts or obligations, and to be receivable by and payable to the said Louisa F. Minor, solely and separately, and on her sole and separate receipt and acquittance, and with power and authority in the said Louisa F. Minor to bargain, sell and convey, bequeath and devise the same, or any part thereof, in as full,' free and effectual a manner as if she were an unmarried woman, her present or any future husband notwithstanding.
    The bill of the plaintiff after setting out the single bill and the deed of trust to Jan-nev to secure it. and charging that the single bill was given for money required for the support of Mrs. Minor, sets out her interests under the will of Charles J. Catlett, and the several deeds hereinbefore mentioned; charges that Mrs. Minor has a separate estate for life under the will in the one-third of the property which she took under the will, and in the two-thirds taken under the deed from John. West Minor to Scott; that she took a fee simple estate under the deed of Fairfax Catlett Minor to her, and that her interest under the deed of Erskine Catlett, is doubtful, and it is necessary that the court shall construe said deed.
    He further states that the only children of Eouisa F. Minor were Fairfax Catlett Minor, and a daughter *Esther who has died leaving two children, Minor Heis-kell and J. Wallace Heiskell, who are infants; that Scott the trustee is dead, and James M. Wallace has been substituted as trustee in his place. And making Mrs. Minor and her husband, the trustee Wallace, Minor Heiskell, and J. Wallace Heiskell. and certain creditors of Mrs. Minor parties, he prays that all necessary accounts may be taken, that the liens and charges binding the separate estate of Mrs. Minor, the nature, character, and value of the estate and the priorities of said liens and charges may be ascertained; that the said separate estate may be subjected to the payment of his debt, and that the lien under the deed to Janney may be enforced, and for general relief.
    The infant defendants answered by their guardian ad litem; Wallace, the trustee, answered at great length, insisting that Mrs. Minor was not bound for the plaintiff’s debt; that it was not given for her benefit, but was the debt of John West Minor; and that Mrs. Minor had no separate estate at the time said debt was contracted, which she did or could bind or in any way make liable for its payment; and he proceeds to comment upon the will of Charles J. Catlett, and the several deeds hereinbefore referred to, and insists that John West Minor had no authority to convey to Scott the one-third of the land allotted to Mrs. Minor on the division of the estate of Charles J. Catlett; and Scott had no authority to execute the deed to Janney in trust to secure the plaintiff’s debt.
    John West Minor having died pending the suit, Mrs. Eouisa P. Minor in January, 1878, filed her answer in the cause; which takes substantially the same grounds taken in the answer of the trustee Wallace.
    The cause'came on to be heard on the 34th of January, 1878, on consideration whereof the court being of opinion that the will of C. J. Catlett having been *made prior to the abolition of the rule in Shelley’s case,” by the terms of said will Eouisa F. Minor took an estate in fee in the one-third part of the tract of land known as “Greenway.” and that in two-thirds of said estate, to-wit: that part thereof purchased by John West Minor from John Janney and by said Minor conveyed to T. Parkins Scott, said Eouisa F. is entitled to an estate for life, and that said estates in fee and for life are the separate property and estate of the said Eouisa F. Minor.
    And being fu rther of opinion that the power and control of the said Eouisa F. over her said “separate estate” is absolute andunrestricted, and that the said estate has been charged by the said Eouisa F. with complainant’s debt; and being further of opinion that said debt bears interest at the rate of 13 per centum peí annum from April 13th, 1871, until paid, doth adjudge, order and decree that a master commissioner of this court do enquire into and ascertain the fee simple and annual value of “the separate estate” of the said Louisa P., the amount due complainant, whether or not said “separate estate” has been charged with other debts due by said Louisa P., and if so charged when, how, and for what amounts and their priorities, and report to this court.
    The commissioner returned his report, by which he fixed the value of Mrs. Minor’s estate in the land at $15,000, and the annual rent at $1.300; and he reported the debts of Mrs. Minor binding her separate estate at $16,304.73; nearly all of which was secured by deeds of trust and the balance by judgments or bonds.
    The court seems to have granted a rehearing of the decree of January 34th, 1878; and the cause came on again to be heard on the 6th of May, 1879, when the court made the following decree:
    *This cause coming on for a further decree under the rehearing had at the last term, and being further argued by counsel, and the court being of opinion that under the true construction of the will of Charles J. Catlett the property thereby settled to the use of his daughter, Louisa. Fairfax Minor, is to be regarded and dealt with as personalty and not realty; that said Louisa had no power to dispose in any way of the corpus of said property; that her power during coverture to alienate (in advance of its receipt) the income therefrom is prohibited by a clear implication from the terms of said will; that the several deeds of trust to secure the debts in the proceedings mentioned are therefore ineffective to create any lien upon said income for their payment; and that the plaintiffs have no right or equity to interrupt the application of said income (both that heretofore accrued and that hereafter to accrue) “to the proper maintenance, support and comfort” of the said Louisa during her lifetime; it is therefore ordered, adjudged and decreed that the plaintiffs’ bill, so far as it seeks to subject said income to the payment of said debts mentioned in said deeds of trust, be and is hereby dismissed, and that said bill be also dismissed so far as it seeks to subject , the corpus of the property in the proceedings mentioned to the payment of said debts, except as to the interest or estate therein which became vested in said Louisa Fairfax Minor under the deed from Fairfax C. Minor dated on the 11th day of May, 1865. which said interest or estate the court now adjudges to be subject to the payment of said debts.
    From this decree the plaintiff obtained an appeal to this court.
    Brook and Scott, William H. Payne and Charles P. Janney, for the appellant.
    *S. F. Beach, for the appellees.
    
      
      Wife’s Equitable Separate Estate— Power of Alienation. — In Bain & Bro. v. Buff’s Adm’r et al., 76 Va. 376, the court said, “In Ropp v. Minor and others, 33 Gratt. 97, 112, the intention to restrain the cestui que trust was deduced chiefly from the provision (not found in the present case) that the fund created was to be under the exclusive control and management of the trustee, who was not only empowered but required to apply the interest or income to the proper maintenance, support and comfort of the wife. And in Bank of Greensboro’ v. Chambers and others, 30 Gratt. 202, a like intention was inferred from the deed as a whole, and from the plan and scheme of the settlement, the design being manifest not only to provide but secure a home for the wife and her family, as well as for their support and maintenance.”
      And in Averett, Tr., et al., v. Tipscombe, 76 Va. 404, the court said, “The cases decided by this court bearing on this question [jus disponendi incident to estate settled to separate use of feme covert] are too familiar to require citation or comment from the bench. For the distinction to be taken between a case like the present and Bank of Greensboro’ v. Chambers and others, 30 Gratt. 202, and Ropp v. Minor and others, 33 Gratt. 97, we refer to what is said in the opinion delivered a few days ago in Bain and Brother v. Buff’s Adm’r and others, 76 Va. 376.” In Christian & Gunn v. Keen, 80 Va. 369, it was said, “In the present case the wife is the sole beneficiary in the deed of settlement. The property is conveyed for her exclusive benefit; nor is its management and con-frol confided to the trustee. The case is therefore unlike the case of Bank of Greensboro’ v. Chambers, 30 Gratt. 202. There the intention to withhold the power of alienation was implied from the manifest purpose of the deed of settlement, not only to provide, but to secure a home for the wife and her children. And substantially the same may be said of the cases of Nixon v. Rose, 12 Gratt. 425; Ropp v. Minor, 33 Id. 97; Bailey v. Hill, 77 Va. 492, and other similar cases to which counsel, have referred.”
      Same — Eft'eci of Diseoverture. — As to the effect of diseoverture on the wife’s equitable separate estate, see Nickell & Miller v. Handly et al., 10 Gratt. 336; Burnett et ux. v. Hawpe’s Ex’or, 25 Gratt. 481; Leake, Trustee, v. Benson et al., 29 Gratt. 153; Garland v. Pamplin et al., 32 Gratt. 305; Price v. Planters’ Nat. Bank et al., 92 Va. 468; Miller v. Miller’s Adm’r, 92 Va. 510.
      See generally as to Wife’s Separate Estate, Burk’s Prop. Rights Marr. Women; 1 Min. Inst. (4th Ed.), 345 et seq.
      
    
    
      
      Wills — Construction.—In Carr v. Branch, 85 Va. 597, the principal case is cited in support of the proposition that the question of conversion depends on the intention of the testator, which need not be expressly declared, but may be derived from the general effect of the will. Sec also 7 Am. & Eng. Enc. of Law (2d Ed.) p. 465.
      Conversion of Realty into Personalty.— The principal case was cited in Board, etc., v. Blair, 45 W. Va. 825.
    
   BURKS, J.,

delivered the opinion of the court.

There can be no doubt, both upon principle and authority, that the execution by Mrs. Minor, in conjunction with her husband, either as principal or surety, of the bond for two thousand dollars, the payment of which with the interest thereon, the appellant is seeking to enforce, operates a general charge upon her separate estate, and that the several deeds of trust on the “Greenway” farm, to the extent of her interest therein, which is the principal portion of said estate, are specific liens on said interest, unless her power to alien or encumber her separate estate was restrained or denied by the instruments creating it. McChesney & als. v. Brown’s heirs, 25 Gratt. 393; Burnett & wife v. Hawpe’s ex’or, Id. 481; Darnall & wife v. Smith’s adm’r & als., 26 Gratt. 878; Bank of Greensboro’ v. Chambers & als., 30 Gratt. 202; Justis v. English & als., Id. 565, and cases there cited. See also- Garland v. Pamplin & als., 32 Gratt. 305.

She derived her interest in one-third part of the farm under the will of her father, Charles J. Catlett, who died in 1845, and in two-thirds under the deed of her husband, executed June 12, 1865. The conveyance' by this deed is to T. Parkin Scott, in trust, as declared, “for the sole and separate use, benefit and behoof of the said Louisa Fair-fax Minor, wife of the said John West Minor, during her natural life, and for the use of the heirs of the said Louisa Fairfax Minor after her death, in the manner and form as set forth and provided in the will-of the said Charles J. Catlett as aforesaid.”

We are thus referred by the deed to the will, and the extent of the wife’s power over the estate created *by the former is to be ascertained and measured by her power over the estate given by the latter.

By his will, the testator, after giving to his wife an annuity of one thousand dollars during her life and charging his whole estate with its payment, gives to his son Erskine Catlett and to his daughter-in-law Esther Ann Catlett and to their heirs respectively, each one-third part of his whole estate subject to the annuity bequeathed to his wife. The remaining third part he gives to his daughter Mrs. Minor by the following clause: “I give and devise one other third part or portion of my whole estate, real, personal or mixed, of every kiñd and description whatever which I may die possessed of or owning, to my daughter-in-law, Esther Ann Catlett, and her heirs, in trust for the use, benefit and be-hoof of my daughter Louisa Fairfax Minor, wife of John West Minor, during, her natural life, and for the use of the heirs of my said daughter after the death of my said daughter, subject to the annuity aforesaid; and my will is and I hereby empower and require the said Esther Ann Catlett, trustee as aforesaid, as soon as convenient and practicable after having received the said legacy, or proceeds of said devise, to loan out the same at interest on good and sufficient security by bond and mortgage on unincumbered real estate and to apply the interest or income which shall or may arise, accrue or be derived therefrom to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support and comfort of my said daughter Louisa, or the said trustee may, if she shall in her discretion deem it proper, pay over the interest or income aforesaid to my said daughter, Louisa, semi-annually in money on her sole and separate receipt independent of any interference, hindrance or control of her husband or by him; and the said interest or income shall not be *liable or taken for her husband’s debts or contracts, nor be applied to the payment thereof, or any part thereof.”

By a subsequent clause, the executors are empowered and directed to sell his property, and from the proceeds of sale, first pay his debts and funeral charges; next, set apart a sum. the annual interest or income from which, will be sufficient to pay the annuity to his wife, and then, in the language of the will, “pay the three other legatees named in this my last will and testament as hereinbe-fore mentioned and directed. He further directs, that the principal sum set apart to provide the annuity to his wife, shall, on her demise, be equally divided among the legatees aforesaid. By a codicil, he gives all his personal property, to his son Erskine. and declares it to be his will and desire that the sale of his real estate shall not take place until after the death of his wife.

We are of opinion, that by the provisions of this will, the whole estate of the testator was equitably converted into money.

It is well settled, that land directed or agreed to be sold and turned into money (upon the principle that what is agreed or ought to be done is considered as done) shall be treated as assuming the quality of personalty, and as continuing impressed with that character, until some person entitled to the proceeds shall elect to take the subject in its original character of land. Per Baldwin, J. in Siter Price & Co. v. McClanichan and others, 2 Gratt. 280. 294.. See also Fletcher v. Ashburner, and notes, English and American, 1 Lead. Cas. Eq. Part 2. (4 th Ed.), 1118 et seq.; Craig v. Leslie, 3 Wheaton R. 563; Harcum’s adm’r v. Hudnall, 14 Gratt. 369 and cases there cited.

In the last named case, it is said, (p. 377), that no discrimination appears to be made in this doctrine of *“equitable conversion” between the case of a conversion which is not required to be made at any particular period, and which therefore, in case of a will, should be made presently after the death of the testator, and one in '•hich the conversion is to be made at some future period prescribed. In the latter case, “we must consider the property as converted from the time when it ought to hftve been converted.” Per Cranworth, Lord Chancellor, Ferrie v. Atherton, 28 Eng. Law and Eq. R. 1.

To have the effect in equity of a conversion, the direction to sell must not be merely optional. It must be imperative. Tazewell and others v. Smith’s adm’r, 1 Rand. 313. 320. The intention, however, to convert may be implied without express words directing a sale. It is sufficient if such intention be clear. 1 Lead. Cas. Eq. (4thEd.), 1138.

Looking to the clause which authorizes the sale, the language in the first part is mandatory. * * * “I do hereby authorize, empower, and direct my executors * * * to sell and dispose of,” &c. In Green v. Johnson, 4 Bush (K’y) R. 164, the language of the will was, “I authorize and request my executors * * * to sell and convey all my lands, except,” &c. The word “request” was considered as synonymous with “require — direct—order.” the latter words being regarded as mandatory.

By the will of Charles J. Catlett, the only discretion given to the executors is as to the time or limes and manner oí sale of the different portions of the property. In a case in New York, where a like discretion was given, the direction to sell was nevertheless considered imperative. Stagg v. Jackson, I Comstock R. 206.

If the clause directing the sale be read, as it should be, in connection with the other parts of the will, and '-especially with the clause already quoted, -which makes provision for Mrs. Minor, the intention to convert the estate into money is clearly manifested: for. the provision and the only provisionmade for her presupposes a sale, one-third part of the proceeds of which is required tobe put out on loan for her benefit.

In Phelps’ ex’or v. Pond, 23 New York R. 69, where a testator authorized his executors to sell real estate, and it was apparent from the general provisions of the will, that he intended such estate to be sold, the doctrine of equitable conversion was applied, although the power of sale was not in terms imperative. See also Power v. Cassidy. 9 Reporter 351; Burr v. Sims & ais., 1 Wharton (Penn.) R. 252, 262.

The entire real estate of the testator being equitably converted into money, the important inquiry is, what limitation or restraint, if any, was placed upon the power of Mrs. Minor to alien or encumber the portion given in trust for her? And here it pay be remarked that the same rule applies, which has been already adverted- to as applicable in determining the question of equitable conversion. The restriction need not be expressed in negative words. No particular phraseology is required, but the intention must be clear. It is sufficient if the intention can be gathered from the whole instrument. 2 Perry on Trusts, § 6T0 and cases cited; Freeman, adm’r v. Elood, 16 Ga. 528.

Tn Bank of Greensboro’ v. Chambers. & als., 30 Gratt. 202, restraint upon alienation was deduced by construction from the instrument as a whole. In the opinion in that case, it was said, “We do not find in the deed of settlement in this case any express inter: diction or limitation of the jus disponendi and of the incidental power to encumber and charge the separate estate to an extent involving alienation, but, if by a fair construction of the instrument, Ihe exercise of "‘these powers would be inconsistent with the plan and scheme of the settlement, and would defeat the plain intent pervading the deed, they must be considered as much forbidden as if expressly denied.”

The will, which fixes the limitation, if any there be. to the wife’s power over her separate estate in the present case, does not in terms forbid her to alien, charge or encumber the estate,, nor does it contain any formal clause against anticipation, such as is sometimes found in settlements, especially in England, but the intcintion to restrain seems to be plainly implied. The main object of the testator in the provision made for his daughter manifestly was to secure to her a comfortable support and maintenance as long as she lived. To accomplish this object, two things at least were necessary to be done — to exclude the rights of the husband and limit the powers, of the wife. The first was effected by giving to the wife a separate use and the second by creating a permanent fund to be under the exclusive control and management of a trustee, who was not only empowered but required to “apply” the interest or income “arising from the fund to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support and comfort” of the wife. Unlimited power in the wife to dispose of the fund or to anticipate the income would be a power to frustrate lhe main design of the testator in creating the trust, namely, the providing and securing to his daughter with reasonable certainty support and maintenance during her life, and it must therefore be taken that he intended to deny to her any such power.

The alternative provision, which authorizes the trustee, instead of personally applying the interest or income to her support, to pay it over to her “semi-annually in money on her sole and separate receipt, is *permissive only. The trustee could not be compelled so to pay it over “in money,” but is merely authorized to do so, “if she (the trustee) shall in her discretion deem it proper.” The imperative duty first imposed on the trustee to “apply” the income or interest, and the alternative discretionary power subsequently conferred to pay “semi-annually in money,” would seem to be inconsistent with the power of the cestui que trust to alienate the income by anticipation, at least so much of it as might be required for continuous support.

There are adjudged cases in the English chancery to the effect, that to direct the “profits to be paid from time to time into the proper hands of the wife;” or that the “profits shall be paid to such persons and in such manner as the wife shall from time to time, during her life, notwithstanding her cover-ture, by any note or writing appoint, and in default of appointment, into her proper hands for her separate use;” or that the profits shall be paid “as the same became due and payable, into the hands of the wife, and not otherwise, and that the receipts of the wife alone for what shall be actually paid into her own proper hands should be a sufficient discharge,” does not sufficiently evince an intention to restrain anticipation of income. These cases are referred to in 1 Minor’s Institutes 327 and have been examined. Some of them were cited in argument by the learned counsel for the appellant. Without meaning to question the correctness of the decisions,' it is sufficient to say, that the language employed is not the same as that used in the will which we have to construe in this case. Owing to the diversity in phraseology and attending circumstances, decided cases can seldom have a controlling influence in the construction of instruments. We may however, for illustration, refer to Perkins, &c., v. Hays and others, 3 Gray’s R. 405. which is somewhat analogous to the case in judgment. *A testator bequeathed an annuity to his widow, to be paid to her, clear of all changes and deductions whatever, during her life; or, in case of her incapacity, at any time, by sickness or otherwise, to receive it, to any person lawfully appointed to represent her; or, in default of such appointment, to be applied by his executors to her support, and the support and education of his minor children. It was held, that the widow had no power to alienate any part of the annuity by anticipation — that the power of alienation by anticipation was inconsistant with and would tend directly to defeat the main object and purpose of the will, to-wit, the support and maintenance of the wife, and the support and education of the children during their minority. “If the alienation were made,” says the judge delivering the opinion of the court, “and the event anticipated and provided for ift the will was to occur, the duty of the executors or surviving executors to apply the annuity to her support would still remain, and must b’e discharged, or the main object and purpose of the trust be defeated.

Our conclusion is, that Mrs. Minor had no power to dispose of, or charge, or encumber the corpus of the estate derived by her under the will of her father or acquired by the several deeds set out in record, except such, if any, as was acquired under the deed of her son Fairfax C. Minor, dated the 11th day of May, 1865. If she took anything under the last named deed, though to her separate use, she was expressly empowered by the deed to dispose of it as if she were “an unmarried woman.” Nor did she have the power to anticipate the profits, income or interest which might arise or be derived from said estate (except as to the interest, if any, acquired as aforesaid under the deed of her son Fairfax), so far as they might be required *for her comfortable support; but, we think, the restrictions upon her powers does not extend to so much of said profits, income or interest as shall exceed what may be necessary for such support. The effect therefore of the several deeds of trust was to create liens for the debts mentioned therein' on such excess, if any, of the profits or income arising from the Greenway farm during the life of Mrs. Minor, and also orí the estate, if any, acquired by her under the deed of her son Fairfax; and this is the full extent of the encumbrances created by said deeds.

It was earnestly argued by the learned counsel for the appellant, that even if the real estate devised by the will was equitably converted into money (a proposition they do not admit, but which to us seems clear), yet it was reconverted into real estate by the election of the parties, shown by the suit for partition in 1846, the actual division of the land under a decree in that suit, and subsequent acts and conduct of the parties. In the view we take of this case, it is not at all necessary to decide, whether any valid election was made or not. For if it be conceded, that it was made, and that the Green-way farm is to be treated as land, the concession does not help the appellant. Whether the estate be realty or personalty, it remained the separate estate of Mrs. Minor, and bound by all the fetters put upon it by the will; the portion acquired under the deed of her husband being placed by the deed on the same footing with the portion derived under the will. Election might change the form in which she would take and hold the estate, but it could not enlarge her powers over it. The restraint imposed was a modification of the separate estate, which she could not change or effect by election or otherwise.

*The Greenway farm having been equitably converted into money, whether it should be treated as personalty, or as reconverted into realty, and whether the estate of Mrs. Minor therein be absolute or for life only, or as to a portion absolute and as to the residue for life, are immaterial questions in this case; as her powers over her separate estate (the only matter we have to deal with), during coverture at least, were limited and restrained in the manner and to the extent already indicated.

The subsequent discoverture of Mrs. Minor cannot per se give any other or greater force and effect to her prior engagements than they had during her coverture. Such engagements did not bind her personally either at law or in equity, so as to warrant a personal judgment or decree against her. They affected her separate estate to the extent and only to the extent of her then existing powers over it. They had no other operation. Her subsequent discoverture could not, upon any principle known to us, operate by estoppel or otherwise to enlarge the liabilities of that estate imposed by the engagements when entered into.

The only error in the decree appealed from is the dismissal of the appellant’s bill, so far as it seeks to subject the income of the estate to the payment of the debts mentioned in the deeds of trust. Such dismissal, in respect of said income, should have been confined to so much of the bill as seeks to subject the income required for Mrs. Minor’s support and maintenance.

For this error, the decree must be reversed in part, and the cause remanded for further proceedings.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript *of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons, stated in writing and filed with the record. that so mueh of the income which has accrued and so much as shall hereafter accrue, from the separate estate of the appellee Louisa Fairfax Minor as shall exceed what may be necessary for her comfortable support and maintenance continuously during her life is liable for the payment of the debts mentioned in the several deeds of trust referred to in said decree, and that so much of said decree and so much only as dismisses the complainant’s bill as far as it seeks to subject such excess to the payment of said debts is erroneous: therefore, it is decreed and ordered, that so much of said decree as is hereinbefore declared to be erroneous be reversed and annulled and the residue thereof be affirmed, and that the appellant recover his costs by him expended in the prosecution of his appeal aforesaid here, to be paid out of such excess, if any there be, of said income now under- the control of the said circuit court or which may hereafter arise, and the said cirucit court is directed by proper order to provide for the payment of said costs out of said excess: and this cause is remanded to the said circuit court with directions to apply the said income accrued and which shall hereafter accrue first to the comfortable support and maintenance of the said Louisa Fairfax Minor continuously during her life, varying the allowance to her for that purpose from time to time, if need be, so as to secure to her at all times such comfortable support and maintenance, if the income be sufficient, and if necessary for that purpose the whole of said income shall be soap-plied. And if the income be more than sufficient for that purpose, the surplus shall be applied to the payment of the debts aforesaid: and the said circuit court is ♦directed to take further proceedings in this cause in conformity with the foregoing opinion and directions in order to a final decree : all of which is ordered to be certified to the said circuit court of Loudoun county.

Decree reversed in part.  