
    *McChesney & al. v. Brown’s Heirs.
    September Term, 1874,
    Staunton,
    i. Wife’s Separate Estate—Jus Disponendi.—A married woman is regarded by a court of equity as tbe owner of her separate estate: and, as a general rule, tbe jus disponendi is an incident to sucb estate; that is, it is an incident thereto, unless and except so far as it is denied or restrained by the instrument creating the estate,
    a. Same—Subject to Restrictions in Instrument.—But it is subject to such limitations and restrictions as may be contained in such instrument; which may give it sub modo only, or withhold it altogether,
    3. Separate Personal Estate—Rents and Profits of Separate Real Estate—Powers of Alienation.—in regard to separate personal estate, and the rents and profits of separate real estate, this power of disposition, if it be unrestrained, may be exercised in the same way, by deed, will or otherwise, as if the owner were a feme sole.
    
      4. Separate Réal Estate—Power as to Corpus.—In regard to the corpus of separate real estate, it can be disposed of only in such mode, if any, as may be prescribed by the instrument creating the estate, or, unless prohibited by such instrument, in the mode prescribed by law for the alienation of real estate of married women.
    5. Same—Rents and Profits—Effect of Conversion into Real Estate.—While the rents andprofits of a wife’s separate estate remain subject to her power of disposition as personal estate so long as they continue in that form, yet when they are, by the wife, or by her direction, converted into realty, such realty can be disposed of only as other separate . real estate of a married woman; that is, in the mode, if any, prescribed by the instrument by which it is conveyed to her or to trustees for her separate use: or, unless prohibited, or except so far as it may "be restrained by tbe instrument, in tbe mode prescribed by law for tbe alienation of tbe real estate of married women. She may baye the realty acquired by means of sucb rents and profits, conyeyed for her separate use, subject to any restrictions she may choose to prescribe in regard to the mode of alienation, or, if she prefers it, without any restrictions at all.
    *By deed bearing- date the 21st day of July 1856, and duly recorded in the clerk’s office of the County court of Augusta county, Samuel B. Brown, in consideration that his wife, Mary Ann Brown, united with him in conveying a valuable real estate of her own and her dower in his real estate, conveyed to Thomas J. Michie and William H. Harman, a tract of two hundred acres of land in said county, upon trust that the said trustees should permit the said Mary Ann Brown and her assigns to occupy, use and enjoy the said land, for her sole and separate use, free from the control of her said husband or his creditors; or if at any times he should prefer, the said trustees should lease out the same, and pay the rents as collected to her, for her sole and separate use; and on the further trust that said Mary Ann Brown may, by writing under her hand and seal, attested by two witnesses, or acknowledged before a justice of the peace, direct said trustees to sell said tract of land or any part thereof; but said trustees shall invest and hold the proceeds of said tract of land for the sole use and benefit of said Mary Ann Brown; in further trust, that the said trustees shall convey said tract of land or dispose of the proceeds thereof, if it, or any part of it, should be sold during her lifetime, as the said Mary Ann Brown shall direct by will duly executed as if she were a feme sole, or by other writing, attested by at least three witnesses: or if she shall fail to make any such will, or to execute any such writing, then to all such children of said Mary Ann Brown, born of her marriage with the sai4 Samuel B. Brown, as may be then living, and to the descendants of such as may be dead, per stirpes, whether such children be now in esse or hereafter to be born of such marriage; or in case no such issue shall be then in being, to the right *heirs of the said Mary Ann Brown. This deed was executed by Mrs. Brown and the trustees.
    Some time before November 1863, an agreement in writing was entered into between John B. Baldwin and M. G. Harman, trustees of the widow and children of John B. Breckenridge, deceased, of the one part, and Thos. J. Michie and William H. Har-man, as trustees of Mrs. Brown, by which the trustees of ' Mrs. Brown agreed to exchange the tract of land conve3red to them for the American Hotel property in Staun-ton, held in trust by Baldwin and M. G. Harman; upon the terms that the land was to be taken at $12,000, and the American Hotel property at $25,000; and for the difference in value Mrs. Brown executed her bonds, in twenty equal instalments, with interest upon them. This agreement was approved by a decree of the Circuit court, in a case of Breckenridge’s creditors against Breckenridge’s adm’rs & als., depending in that court; and Baldwin and M. G. Harman and the heirs of Breckenridge were directed to convey the said hotel property to Michie and Wm. H. Harman, trustees of Mary Ann Brown. But they were not to deliver the conveyance until the trustees of Mrs. Brown should execute and deliver to them a deed foi the tract of land held in trust by them. It does not appear that these deeds were ever executed; but Mrs. Brown was put into possession of the hotel property, and kept the hotel for several years, and out of the profits paid off several of her bonds, amounting to about $6,500.
    In April 1863, Samuel B. Brown and his son-in-law, A. S. Bara, purchased of George W. Persons, -a large tract of land in the state of Georgia, containing near two thousand acres, and sixty negroes, for $100,000; the land estimated at $40,000 and the negroes at *$60,000; for which they paid in cash $10,000, and gave their notes, one for $40,000, payable on the 15th of October 1863, and one for $50,000, payable on the 15th of October 1865. On the 22d of June 1863, they paid $20,000 on the first bond. On the 19th of October 1863, they paid $2,411 on the second bond, and on the 3d of March 1865, they paid this bond off in full; and on the same day they received a receipt for $60,000, in full for the sixty negroes, and a conveyance of the land.
    In September 1863, A. S. Bara, acting for himself and S. B. Brown, Jr,, entered into an agreement, under seal, with William S. McChesney, by which they sold to McChesney the American Hotel property for $30,000; and in April 1864, S. B. Brown, Jr., confirmed the sale. A few days after the sale A. S. Bara and John Brown, as his surety, executed to McChesney a bond in the penalty of $60,000, with condition that Bara and S. J.. Brown, Jr., would make him a good title to the said hotel property; and McChesney paid to Bara the purchase money.
    The only title which Bara and S. B. Brown, Jr., claimed to this property, was by a gift by parol, with Mrs. Brown’s consent, of one-half of it, by Samuel B. Brown •to his son, S. B. Brown, Jr., anda like gift of the other half to Bara, except a small amount of personal property which Bara claimed he had let Samuel B. Brown have in part payment for it.
    It appears that, in 1863, Samuel B. Brown removed to the State of Georgia; and about the time and after their removal several papers were executed by Mrs. Brown in relation to this hotel property. The first is under seal, and attested by two witnesses, and bears date the 12th of October, 1863. It is addressed to the trustees, Michie and Harman, and requests them to ^ratify the sale made by A. S. Bara and John B. Brown, Jr., of the American Hotel property, and to confirm the investment of the proceeds thereof, together with such amount as she has saved from the use of the same, in the purchase of one-half of a plantation and sixty negroes in the county of Crawford, Georgia. The purchase aforesaid having been made by S. B. Brown in her behalf, with A. S. Bara, of George W. Persons.
    There is another paper not under seal, without witnesses or date, though it was probably executed about February 1st, 1864, addressed by Mrs. Brown to her trustees, in which she says she is desirous and wishes them to make and convey all right, title and interest to Dr. McChesney in the American Hotel property, as the amount has been invested in land, negroes, &c., in Georgia to her satisfaction and for her benefit.
    It appears that these papers -were not satisfactory to the trustees, of which they informed Samuel B. Brown; and a third paper was executed by Mrs. Brown, dated November 16th, 1864, directing her trustees to convey to Bara and J. B. Brown, Jr., her life interest in the American Hotel property.
    In fact, no settlement of the Georgia property was ever made upon Mrs. Brown; and in December, 1867, she wrote to H. M. Bell, living in Staunton, and says she understands that he has in his possession several papers signed by her, purporting to be her last will, and two or three others purporting to be ratifications by her of the sale of the American Hotel property. As the terms on which all these papers were executed have not been complied with, and no property has been substituted for this property for her benefit, she desires to withdraw these papers. He will, therefore, ^deliver them to Mr. A. S. Bara, to return them to her. And Mr. Bell returned them to her.
    In 1868 Mrs. Brown died intestate, in the lifetime of her husband, leaving five children. And, in April 1869, John H. Richardson and Sarah A. his wife, who was a daughter of Mrs. Brown, and two other of her children, instituted their suit in equity against Thomas J. Michie, the surviving trustee, Wm. S. McChesney and John Q. A. Nadenbousch, who had been admitted by McChesney into a half share of the American Hotel property, Bara and his wife, S. B. Brown, Jr., Baldwin andM. G. Harman, trustees of the widow and heirs of John B. Breckenridge, deceased, and a number of other persons in whom was the legal title to the property; and in their bill they set out the deed of the 21st of July, 1856, the exchange for the American Hotel property; the payment by Mrs. Brown of a part of her bonds out of the profits of the hotel; and the occupation of the property for some years by McChesney and Nadenbousch, under a contract with Bara and S. B. Brown, Jr. They charge that Mrs. Brown died in 1868, without having done any act whereby her legal and equitable claim to the American hotel property was divested from her and her children, according to the terms of the said deed-of trust. They pray that the proper parties may be directed to convey a good title to the said property; that it may be divided among the five children of Mrs. Brown; that McChesney and Nadenbousch may account for rents and profits ; and for general relief.
    McChesney and ISTadenbousch answered the bill, and then filed a cross-bill. They saj' that there was present at the time of the contract entered into between Tara and McChesney, a paper executed by Mrs. Brown recognizing in valid form the right of said Bara and *S. B. Brown, Jr., to sell the American Hotel property; and that the contract was made under the supervision of Mrs. Brown’s trustees; and that the proceeds of the sale of the property were taken to the state of Georgia and invested for the benefit of Mrs. Brown; and that the complainants have received their full share of the benefits derived from said investments. And they insist that the Georgia property should be subjected to satisfy them if the sale to them is set aside.
    There were other answers to the bill and the cross-bill; but it is unnecessary to state them, further than that Bara denies that the purchase money of the hotel property was invested in the Georgia property. He says he paid S. B. Brown, Jr., his half of it. The facts are as hereinbefore stated.
    The cause came on to be heard on the 23d of June 1873, when the court decreed that the three children of Mrs. Brown, plaintiffs, should hold in fee simple and as tenants in common, each one undivided fifth part of the American Hotel property; that Mrs. Bara should hold one undivided fifth part of said property; subject, however, to the life estate therein of her husband A. S. Bara; and McChesney and ISTadenbousch should hold Bara’s said life estate, and one-fifth of the property in right of S. B. Brown, Jr., in fee simple; and that Bara and said Brown should convey their respective interests to them. And accounts were directed; the account of profits not to go further back than the death of Mrs. Brown. From this decree McChesney and Naden-bousch obtained an appeal to this court.
    J. Randolph Tucker and Hanger, for the appellants.
    Sheffey & Bumgardner and Echols, Bell & Catlett, for the appellees.
    
      
      Wife’s Separate Estate—Alienation.—See Justis v. English et als., 30 Gratt. 565, and note; Ropp v. Minor et als., 38 Gratt. 97, and note. The principal case is approved in Burging v. McDowell et als., 30 Gratt. 236; Frank & Adler v. Lilienfeld et als., 33 Gratt. 377; Hawley v. Twyman, Trustee, et als., 29 Gratt. 728; Hughes & Co. v. Hamilton et als., 19 W. Va. 388; Rad-ford v. Carwile et al., 13 W. Va. 669; Patton v. Merchants’ Bank, 12 W. Va. 608. In the case of Taylor v. Cussen, 90 Va. 40, 17 S. E. Rep. 721, the court held that a deed of trust executed by a married woman and her trustee on her equitable separate estate in land, her husband not joining in the deed, is void even where no restriction is placed npon, nor mode prescribed for, the alienation of the property.
    
   *MONCURE, P.,

delivered the opinion of the court.

The court is of opinion that the following may be laid down as sound and well settled principles of law, and are applicable to this case, viz:

1st. A married woman is regarded by a court of equity, as the owner of her separate estate; and, as a general rule, the jus dis-ponendi is an incident to such estate; that is, it is an incident thereto, unless, and except so far as it is denied or restrained by the instrument creating the estate.

2d. But it is subject to such limitations and restrictions as may be contained in such instrument; which may give it sub modo only, or withhold it altogether.

3d. In regard to separate personal estate, and the rents and profits of separate real estate, this power of disposition, if it be unrestrained, may be exercised in the same way, by deed, will or otherwise, as if the owner were a feme sole. But in regard to the corpus of separate real estate, it can be disposed of only in such mode, if any, as may be prescribed by the instrument creating the estate ; or, unless prohibited by such instrument, in the mode prescribed by law for the alienation of real estate by married women.

4th. While the rents and profits of a wife’s separate real estate remain subject to her power of disposition as personal estate so long as they continue in that form, yet, when they are, by the wife, or by her direction, converted into realty, such realty can be disposed of only as other separate real estate of a married woman; that is, in the mode, if any, prescribed by the instrument by which it is conveyed to her or to trustees for her separate use; or, unless prohibited, or except so far as it may be restrained by the instrument, in the mode prescribed by law for the *alienation of real estate of married women. She may have the realty, acquired by means of such rents and profits, conveyed for her separate use, subject to any restrictions she may choose to prescribe in regard to the mode of alienation, or, if she prefer it, without restriction at all.

Other principles of law on the subject, no less sound or well settled, might here be laid down, but it is unnecessary for the principles of this case. Nor is it necessarj' n this case to express any opinion upon the much vexed and yet unsettled question, whether, where the instrument creating the separate estate, prescribes a mode of disposing of the estate, that mode is in exclusion of any other; upon the principle of ex-pressio unius est exclusio alterius. Certainly, the instrument may, either expressly or by plain implication, exclude any other.

The court is further of opinion that in regard to the two hundred acres of land in the county of Augusta, conveyed by the deed of the 21st day of July, 1856, in the proceedings mentioned between Samuel B. Brown of the first part, and Mary Ann Brown, his wife, of the second part, and Thomas J. Michie and Wm. H. Harman of the third part, th» said land could be disposed of either by an act to take effect during her lifetime, or by an act to take effect after her death. The only mode by which it could be disposed of, in order that such disposition might take effect during her life was under that trust of the deed which declares that the “said Mary Ann Brown may by writing, under her hand and seal, attested by two witnesses, or acknowledged before a justice of the peaoe, direct said trustees (Michie and Harman) to sell said tract of land, or any part thereof; but said trustees shall invest and hold the proceeds of said tract of land for the sole use *and benefit of said Mary Ann Brown as aforesaid.” The only modes by which it could be disposed of, in order that such disposition might take effect after her death, was under that trust of the deed which declares that, on the death of the said Mary Ann Brown; the said trustees shall convey said tract of land, or dispose of the proceeds thereof, if it, or any part of it, should be sold during her lifetime, as the said Mary Ann Brown shall direct, by will duly executed as if she were a feme sole, or by other writing attested by at least three witnesses.”

The deed expressly provides, that “if she fail to make any such will, or to execute any such writing, then the said trustees shall convey the said tract of land,” &c., “to all such children of said Mary Ann Brown born of her marriage with the said Samuel B. Brown, as may be then living, and to the descendants of such as may be dead, per stirpes, whether such children be now in esse or hereafter to be born of such marriage; or, in case no such issue shall be then in being, to the right heirs of the said Mary Ann Brown. ’ ’ She died without having made any such will, or executed any such writing; and under' the limitation of the said deed, the corpus of the trust subject devolved on her children then living born of her marriage with the said Samuel B. Brown, of which there were several, there being no descendants then living of any such children as were then dead. The only mode by which she could possibly have defeated the said limitation in favor of the said children, was to dispose of the corpus of the trust subject by .will, duly executed, as if she were a feme sole, or by other writing attested by at least three witnesses, as prescribed by the said deed. She had no right to spend the proceeds of sale, or any part thereof, of the corpus of the trust subject, or any *part thereof, if sold in her lifetime; but it was the duty of the trustees to invest and hold the proceeds of any such sale for the uses and purposes declared in said deed.

The court is further of opinion that the exchange in the proceedings mentioned, of the said two hundred acres of land for the American Hotel property was a valid sale of the said two hundred acres of land, and a valid investment of the proceeds of said sale in the said American Hotel property under the trusts and powers created by the said deed, whereby the said American Hotel property, to the extent of the said investment, to wit: the sum of $12,000, the agreed value in said exchange of the said two hundred acres of land, became subject to all the trusts and powers created by the said deed, just as if the said hotel property had been the subject conveyed by the said deed instead of the said two hundred acres of land.

The court is further of opinion that the said American Hotel property, to the extent to which the purchase money thereof was paid by the said Mary Ann Brown out of its profits after the said exchange was made, became also the separate estate of the said Mary Ann Brown. So that the whole of the said hotel property thus became the separate estate of the said Mary Ann Brown, subject, however, to the payment of the balance of the purchase money yet remaining due and unpaid to those who sold the property to her or her trustees.

The court is further of opinion that after the said exchange was made, there was no other sale or investment under the trust and powers created by the ' said deed; but the said American Hotel property, subject to the lien thereon as aforesaid, having become the separate estate. of the said Mary-Ann Brown as aforesaid, *and not having been disposed of by her in her lifetime or at her death, belonged, at the latter event, which happened in the year 1868, to her children, who were entitled thereto, either under the limitation contained in the said deed, or as her next of kin, and in the same proportions, whether entitled in one or the other of these two ways.

To the extent that the said property represents or was purchased with the original trust subject, it was, of course, subject to the limitations and restrictions declared by the said deed. To the extent that the purchase money was paid out of the profits of the property after the said exchange was made, it seems also to be subject to the said limitations and restrictions. The profits of the separate estate, whether it be the original subject or that for which it was exchanged, were as they accrued, separate personal estate of Mrs. Brown, and might have been disposed of by her according to her pleasure, as if she had been a feme sole. She had power to spend them, or she had power to invest them in real or other estate, and on such trusts and limitations as she thought proper. She chose to invest them in real estate, to wit: in the American Hotel property. They then ceased to be personal estate, subject to her general right of disposition as of separate personal estate, and became real estate, subject only to such right of disposition as she had, either under the powers created by the original deed, or under the law in regard to the real estate of a feme covert. The case of West v. West’s ex’ors, 3 Rand. 373, shows that while the profits of her real estate before they were invested were personal estate, subject to her general jus disponendi, yet so soon as they were invested by her in real estate, they became thenceforward separate real estate, subject *only to such a jus disponendi as belongs to such an estate. Were they invested in the said estate generally, without any limitations or restrictions, or were they invested under any, and if any, what limitations or restrictions? She had the right to consult her pleasure in this respect, and it seems that she intended to invest the said profits in the said real estate, subject to the limitations and restrictions declared by the original deed. There was an exchange of the original trust property for the American Hotel property, and no doubt it was intended that the latter should be held on the same trusts on which the former had been held. No other trusts were declared. There was no reason for holding a part of the property under those trusts and the residue under other trusts, and if such a different holding had been intended, it is reasonable to believe that the intention would have been declared. It seems that mutual deeds were executed for the property exchanged, but they are not in the record. There is in the record, however, a copy of the decree made in the case of Breckenridge’s creditors v. Breckenridge’s adm’rs, «fee., by which commissioners were appointed to convey to Thomas J. Michie and William H. Harman, trustees of Mary Ann Brown, the “American Hotel property’ ’; thus showing that it was intended that the whole property should be conveyed to the said trustees, subject to the trusts of the deed by which they were created trustees.

But however that may be, the effect is precisely the same, whether that part of the property in which the profits were invested be subject to the limitations and restrictions of the original deed, or be separate real estate free from such limitations and restrictions; and it must, as we have seen, be one or the other. Precisely *the same persons would be entitled to it as the heirs-at-law of Mary Ann Brown, who would be entitled to it under the limitations of the deed. It was converted from personalty into realty; and the surviving husband has no interest in the subject as tenant by the curtesy, as is clearly shown by Judge Carr in the case of West v. West’s ex’ors, supra. That case is one of very great importance, has a strong bearing upon this, and, indeed, seems to be conclusive of it. It was decided' by four judges, who delivered seriatim opinions, and there was no disagreement among them. It is therefore unnecessary to determine the question, whether the American Hotel property, so far as it represents, or was purchased out of the rents and profits thereof, received or realized by the said Mary Ann Brown as aforesaid, was subject to the limitations and restrictions declared by the said deed, or was her separate real estate, free from said limitations and restrictions.

The court is further of opinion that the appellants purchased the said American Hotel property not of the said Mary Ann Brown, nor of her said trustees, Michie and Harman, or either of them, but of the ap-pellees, A. S. Bara and Samuel B. Brown, Jr., who claimed to have derived it from Samuel B. Brown, Sr. ; and the whole amount of the purchase money contracted to be paid by them, to wit: $30,000 in Confederate currency, was paid by the said purchasers to the said Bara, for himself and the said Samuel B. Brown, Jr., on his giving a bond of indemnity with surety; and no part of the said purchase money was paid to the said Mary Ann Browm, or ever enured to her benefit. The acts and conduct of the said Mary Ann Brown, and of her trustees, the said Michie and Harman, after the said purchase was made, and tne ^purchase money was paid as aforesaid, which are relied on by the appellants as having the effect of confirming their title, and making it good under the trusts and powers of the said deed, can have no such effect. There was no sale and conveyance of the property to them by Mrs. Brown or her said trustees in the mode prescribed by the said deed, or in the mode prescribed by law for the conveyance of the real estate of a feme covert; and there was no contract between her and her said trustees, or any or either of them, and the appellants for the sale and conveyance of the said hotel property, which can be enforced by a court of equity. The deed of trust conveying the two hundred acres of land to Michie and Harman was duly recorded, and was known to the appellants when they became the purchasers of the American Hotel property, and it was known to them that the said property was subject to the trusts of the said deed. They, no doubt, confided in the ability of their vendors to make them a good title, and in the security afforded them by the indemnifying bond; and they chose to run the risk for the sake of the advantages which they hoped to derive from the purchase. Mrs. Brown, being a feme covert, had no power to convey the property nor to contract in regard to it, except in strict pursuance for the powers conferred by the said deed, or at least of the powers conferred by law in regard to the conveyance of real estate of a feme covert; and therefore all her acts, and all instruments signed by her in reference to a transfer of the said property, or any interest therein to the appellants, were utterly null and void. Nor had the trustees any power to sell the property, or to sanction the sale of it to the appellants, except in pursuance of the deed of trust; nor does it appear that they had any intention of doing so; and certainly *the husband, Samuel B. Brown, Sr., had no such power. The .deed was intended to secure the property against his power and control, and even against the power and control of his wife, except under the restrictions and limitations declared by the deed. Her acts might be influenced, as they no doubt were, by him; and it was therefore intended to afford her protection even against her own acts, except as aforesaid. If she had no power to convey the property otherwise than as aforesaid to the appellants or their vendors, she had no po-wer to make a contract for such a conveyance, which a court of equity could enforce, much less could any voluntary promise she may have made, without any valuable consideration, to confirm the title of the appellants, be so enforced. But it does not appear that she ever made such a promise, at least until after they had made the purchase of Bara and Samuel B. Brown, Jr., paid the purchase money, and taken a bond of indemnity to secure the title. The children of a marriage, when provided for by a settlement, whether it be ante or post-nuptial, are always regarded as being embraced within the consideration of the settlement; and the rights thereby secured to them cannot be released by the wife by any instrument however formal. So far from any imperfect act of hers, founded on no valuable consideration flowing- to her or to them, being regarded as a defective execution of a power which a court of chancery will help, it would rather be regarded as an abuse or perversion of power on which that.court will frown.

The court is further of opinion that it does not sufficiently appear that the said purchase money, or any part thereof, was invested in the purchase made by the said Samuel B. Brown, Sr., and Bara, of land and slaves in Georgia, or was applied . to the payment of *the purchase money thereof; and, at all events, that the appellants are entitled to no further relief than has been afforded them by the decree of the Circuit court, in giving them the benefit of the rents of the said American Hotel property after their purchase thereof, and until the death of the said Mary Ann Brown; and also the benefit of the shares and interest of th.e said Samuel B. Brown, Jr., and A. S. Bara in the said property.

. The court is therefore of opinion that there is no error in the decree of the Circuit court, and that it ought to be affirmed.

Decree affirmed.  