
    James M. Staggers and Eliza Ann his wife vs. Samuel P. Matthews and others.
    
      Marriage Settlement, construction of — Trusts only during Coverture — Surplus Income.
    
    By ante-nuptial marriage settlement the property of feme, consisting of lands and slaves in which she had but a life-estate, and a little personalty which she held absolutely, was conveyed to a trustee, his executors, &e., during “the natural life of” feme, in trust, for her sole and separate use, during “her natural life,” and to permit her to take the income for her exclusive use ; and it was agreed that the income shall be accounted “ as a separate and distinct estate” from the husband’s, and that “the ready money accruing out of such separate and distinct estate” shall, from time to time, be put out at interest on such securities, and invested in such property as she shall direct, “ which securities, during the coverture, and bills of sale and titles to the property so purchased,” shall be taken in the name of the trustee, &e., in trust for the feme during her natural life, and at her death for the children, issue of the marriage -. — Seld, that according to the legal construction of the settlement, the trusts were intended to last, and did last, only during the coverture, and that, upon the death of the husband, the legal estate in the corpus of the settled property revested in the feme, she being the survivor.
    
      Seld, further, that the terms “ready money” meant surplus income accruing during the coverture, and that such surplus income, whether invested or not under the directions of the feme, became an accessory trust-estate, for-the use of the feme for life, with remainder to the only child of the marriage.
    Whether the trusts of a marriage settlement end with the particular covprture then contemplated, or whether they extend to future, covertures, is a question of intention, to be determined by the terms of the settlement.
    BEFORE LESESNE, OH., AT WILLIAMSBURG, MARCH, 1866.
    The facts of the case sufficiently appear in the Circuit decree, and in the opinion delivered in the Court of Appeals. The marriage settlement which was before the Court for construction,! bore date December 10th, 1850. The parties were James L. Mouzon, the intended husband, of the first part, Eliza Ann Burgess, widow of James A. Burgess, deceased, the intended wife, of the second part, and Leonard W. Mouzon, the trustee, of the third party. After reciting the said intended marriage, and that the feme was entitled, under the will of her late husband, James A. Burgess, to an estate for life in a certain tract of land, describing the same, and in certain slaves, horses, mules, cattle, &c., described in the schedule thereunto annexed, (and therein valued at $9,950,) and that she was possessed of the same, and also that she was possessed in her own right of certain other personal property described in the schedule, (and therein valued at $1,889,) and that it had been agreed that the said real and personal property should be settled to tbe uses, purposes, and trusts therein after mentioned, she, the said Eliza Ann Burgess, conveyed the same, with the rents, issues, profits and increase, to the said Leonard W. Mouzon, “his executors, administrators and assigns, for and during the term of the natural life of her the said Eliza Ann Burgess, in trust nevertheless, and to andffor, and upon the several uses, trusts, conditions, limitations and provisions hereinafter expressed, limited and declared of and concerning the same and any part thereof, that is to say, in trust to and for the sole use and benefit and behoof of the said Eliza Ann Burgess, until the solemnization of the said marriage, and from and immediately after the solemnization thereof, then in trust to and for the sole and separate and exclusive use, benefit and behoof of the said Eliza Ann Burgess, for and during the term of her natural life, without being in any manner whatever subject to the debts, contracts, control, engagements or intermed-dling of the said James L. Mouzon, his executors, administrators or assigns, or of any other person or persons whomsoever claiming or to claim the same or any part thereof by, through or under him or them, and in trust to permit and suffer the said Eliza Ann Burgess and her assigns to have, take and receive the rents, issues and profits of the said lands, and the proceeds of the labor of the said slaves and their increase, and the proceeds arising from the work of the said horses and mules, and the profits arising from the said cattle, sheep and hogs, and of all and singular the aforesaid property, to and for her sole, separate and exclusive use, benefit and behoof.
    “And it is further mutually covenanted and agreed upon by and between the parties to these presents, and the said James L. Mouzon, for himself, his executors, administrators and assigns, doth covenant, promise and agree to and with, the other parties to these presents, that the said Eliza Ann Burgess, notwithstanding the said marriage, shall have, take and receive the rents, issues and profits of the said lands and the proceeds arising from the labor of the said slaves aforesaid, and their increase, and the profits arising from the labor of the horses and mules and the profits of the said cattle, sheep and hogs; to and for her sole and separate use, benefit and behoof, and the same shall be accounted, reckoned and taken as a separate and distinct estate of and from the estate of him the said James L. Mouzon, and be in nowise liable or subject to him, or the payment of any of his debts, but with the profits or increase that shall hereafter be begotten, gained or made of the same, be ordered, disposed and employed to such person and persons, and to and for such use and uses, intents and purposes, and in such manner and form as is hereinafter, mentioned and declared — that is to say, that the ready money accruing out of the said separate and distinct estate before mentioned, shall from time to time be placed out at interest on such securities as she, the said Eliza Ann Burgess, shall think fit, and invested in such property as she, the said Eliza Ann Burgess, shall direct, which securities, during the said coverture, and bills of sale and titles to the property so purchased, shall be taken and made in the name of the said Leonard W. Mouzon, or in the name or names of such other person or persons as she, the said Eliza Ann Burgess, shall order and appoint in trust for her, the said Eliza Ann Burgess.
    “ And it is further mutually covenanted and agreed upon by the parties to these presents, that such property of whatever kind so purchased, with the moneys accruing or arising out of the said separate estate, may be sold, disposed of, exchanged, and such purchased, exchanged or substituted property shall be invested in the name of the said Leonard W. Mouzon, as trustee, and shall be held subject to the uses, trust and conditions as hereinbefore limited and declared of and concerning the hereinbefore assigned premises; and such sales or dispositions of the aforesaid property so purchased out of the proceeds arising from the said separate estate or its substitution may be made toties quoties as she, in her discretion, may direct or effect.
    
      “ And it is further mutually covenanted and agreed upon by and between the parties to these presents, that any property of whatsoever kind, which may be hereafter begotten, gained or made of the profits of the said separate and distinct estate of her, the said Eliza Ann Burgess, shall be reckoned, accounted and taken as the separate and distinct estate of the said Eliza Ann Burgess, for and during the term of her natural life, and from and after the decease of her, the said Eliza Ann Burgess, then the same shall be held by the said Leonard W. Mouzon, to and for the sole and separate use, benefit and behoof of any child or children to be begotten by and between the said James L. Mouzon and the said Eliza Ann Burgess, issue of the said intended marriage, to him, her or them, forever; and in case the said Eliza Ann Burgess should die in the lifetime of the said James L. Mouzon, without any child or children, issue of the said intended marriage, surviving her, then and in that case the property so held in trust by the said Leonard W. Mouzon, trustee as aforesaid, acquired, gained and made, as aforesaid, of the profits of the said separate and distinct estate of her, the said Eliza Ann Burgess, shall be the absolute property of Mm, the said James L. Mouzon, and shall be delivered up by the said Leonard W. Mouzon, trustee as aforesaid, to the said James L. Mouzon, forever free and discharged from trust, to and for his own proper use, benefit and behoof, any clause or clauses in this instrument contained to the contrary notwithstanding.”
    Here followed two covenants, one giving the said Eliza Ann Burgess power to substitute a trustee in place of the said Leonard W. Mouzon in case of his death, resignation, removal from the State, &c., and the other, a covenant by the said James L. Mouzon and Eliza Ann Burgess, for further assurance.
    The decree of his Honor, the Circuit Chancellor, is as follows:
    Lesesne, Ch. Eliza Ann Burgess, widow of James A. Burgess, being entitled under his will to a life-estate in all his property, real and personal, intermarried with James L. Mouzon, on the tenth day of December, 1850. By a settlement executed in contemplation of the marriage, the same,.among other things, was conveyed and assured to Leonard W. Mouzon, in trust, for her sole and separate use, benefit and behoof during her natural life, not subject to the debts or control of her said intended husband, or of any person claiming under him; and in trust to permit her and her assigns to take and receive the income thereof for her sole and separate use. And it was thereby agreed that the said income so to be taken and received by her should be accounted as a separate and distinct estate from the estate of the said James L. Mouzon, and not be liable for Ms debts; but, “with the profits or increase” that should thereafter be gained, “ be ordered, disposed or employed” as follows, viz.: The ready money accruing out of the said separate estate to be invested during the said coverture, under her direction, in the name of the trustee, in trust for her; snch investments to be accounted as her separate estate during her life, and the same' after her decease to be held for the sole and separate use of the children of the said James L. Mouzon and herself.
    James L. Mouzon was in insolvent circumstances at the time of his marriage, and continued so, having no property except a life-estate in about ten slaves, which, upon his death, on the ninth day of December, 1855, vested absolutely in his infant son, Samuel H. Mouzon, the only child of the aforesaid marriage.
    His widow, the said Eliza Ann, afterwards intermarried with Samuel P. Matthews. Matthews died intestate, and she administered on his estate. He left one child by a former marriage, Samuel P. Matthews the younger.
    She afterwards intermarried with James M. Staggers, and the bill is filed by Staggers and wife against Samuel P. Matthews, Leonard "W. Mouzon and Samuel H. Mouzon.
    It states that, during the lifetime of James L. Mouzon, some personal property was purchased with money arising from income of the plaintiff, Eliza Ann’s separate estate, a schedule of which is filed as an exhibit.
    It states further that between the death of James L. Mouzon and her intermarriage with Matthews, the latter acted as the agent of her trustee and herself, and received notes for the hire of the negroes, her life-interest in whom formed one of the subjects of the settlement, and a note for the sale of a tract of land that had been purchased with her income and sold by her; that after the marriage he received all the income to which she was entitled, consisting in part of notes for the hire of negroes, and invested moneys arising from income in property in his own name; that she, as his administratrix, included all these things, as well as the crops on hand at the time of his death, in the inventory of his estate, by mistake, believing that the provisions of her marriage settlement in regard to her income had no effect after the death of Mouzon, and that the said things belonged to Matthews by virtue of the marital right. The plaintiffs are now advised that they constituted her separate estate, and the bill prays that they may be decreed not to belong to his estate, and the inventory be corrected accordingly.
    It is now settled that, when the separate use is meant to apply to any and every marriage, it is suspended if the wife become discovert, and arises again if she make another marriage. (Tullett vs. Armstrong, 4 Mylne & Craig, 390.) But the separate use may be confined to a particular cover-ture, (Knight vs. Knight, 6 Sim. 121; Lewin on Trusts, 130-1;) and if the intention be so to confine it, and the husband afterwards die and she marry again, the marital right of the second husband will attach. (Bradley vs. -Hughes, 8 Sim. 149; Newland vs. Paynter, 4 Mylne & Craig, 408.)
    In the case under consideration, I think the separate use is limited, by the proper construction of the deed, to the coverture, in contemplation of which it was made. Thus, directions are given in regard to the investment of the separate estate created by the deed, and the same are expressly limited by the terms, “ during the said coverture,” referring to the marriage with Mouzon. Again, it is declared to be protected from the debts of Mouzon alone, and those claiming under him, and not from the debts of any future husband.
    It is true, if the deed showed otherwise, that the income was to continue as it accrued during her whole life, to form an accumulating estate for her separate use, those words would not be necessary. But they are commonly, if not always, found in settlements, when that is the intention; and this deed was evidently prepared with care by a trained-conveyancer, who does not manifest any disposition to spare stereotyped expressions.
    Again, the said separate estate is limited on the death of the wife to the children of the marriage with Mouzon. If it was not intended to restrict the separate estate to the interest accrued during that coverture, can it be supposed that she would have excluded the issue of any subsequent marriage she might contract from participation in it? Then, what were the circumstances of the parties ? It was admitted at the hearing that Mouzon was an improvident man, and an insolvent. He, however, won her affections, and she resolved to marry him — having an abundant income of her own. But inasmuch as the income that would accrue during the coverture would be liable for his debts, it was natural that she should protect it against his creditors, and secure the surplus of it to the issue of that marriage ; and that, in my opinion, is precisely what she did. It would have been very extraordinary for her to debar herself of the right of free disposal of her own income in case of her becoming discovert, and bind herself to set it apart as long as she lived, as an accumulating fund for the issue of that marriage alone. And I see nothing in the deed which requires such a construction.
    These remarks have reference to the surplus only of the income; but the proposition of the plaintiffs is more extraordinary, namely, that the entire income, to the end of her life, was intended to be so set apart.
    I am, therefore, of the opinion, that, on her marriage with Mr. Matthews, the marital right attached on any income or proceeds of income in hand, which had accrued after,the date of Mr. Mouzon’s death; and it is so adjudged and decreed.
    As to the income which accrued before Mouzon’s death, I am of opinion that it is subject to the trusts of the settle■ment — provided, however, that it was invested in the trustee’s name, as prescribed; otherwise, the marital right attached on it too. For I think she was entitled to its use, free from any control whatever on the part of the trustee. The deed provides, in unqualified terms, that she and her assigns should be permitted to take and receive the same, for her exclusive use. It then provides for the creation of an estate, which I will designate as the permanent separate estate, by declaring that the ready money acquired as income shall be invested in such securities and other property as she shall direct, “ which securities, during the coverture, and bills of sale, and titles to the property so purchased, shall be taken and made in the name of” the trustee, and be for her during the term of her natural life, and be held from' and after her decease for the use of the child or children of the marriage absolutely.
    If the construction put on this latter clause by the plaintiffs be correct, it is in flat repugnancy to the former, and .must yield to it. (Porter vs. Ingram, Harp. 492; Frazer vs. Boone, 1 Hill Oh. 867, affirming Ld. Coke’s Maxim.) But I think that both may stand and be interpreted together, thus: the wife was to receive the income and use it as she pleased; and if she chose from time to time to apply any part of it to the formation of the permanent separate estate, then the same should be invested in the name of the trustee, and held for the uses declared thereof. Non-investment of any part by the trustee showing that she fancied to use that herself.
    It does not appear that any such investments were made. The trustee’s answer, on the contrary, avers “that she never directed any of the proceeds or profits of the trust-estate to be invested subject to the trusts of the deed, and he denies having now in his power, possession or control, any part of the said estate.” He submits that the settlement had no further force and effect after the death of Mouzon, and avers that, before the marriage with Matthews, in and by a paper under her hand and seal, a copy of which is filed as an exhibit to the answer, she acknowledged that he had fully accounted with, her for all moneys received by him as trustee up to the first day of January, 1856, and discharged him from all further accountability for the same; and he denies that he has intermeddled with the estate'since that date. The plaintiffs may have a reference on this subject, if they be so minded.
    The bill states that some property belonging to the estate of James A. Burgess was inadvertently put in the inventory of the estate of Samuel P. Matthews; and that the said Samuel P. Matthews was indebted to the infant defendant, Samuel H. Mouzon, on various accounts; and that the plaintiff) Eliza Ann Staggers, as administratrix of Matthews, desires to settle this debt, but is unable to ascertain the amount. These two matters are r'eferred to the Commissioner for inquiry and report.
    The bill also prays for a partition of the real estate of Samuel P. Matthews, deceased, between the plaintiff) Eliza Ann Staggers, and the defendant, Samuel P. Matthews, in the proportion of one-third to the former and two-thirds to the latter; and it is ordered and decreed that a writ of partition issue for that purpose, according to the rules and practice of this Court. The land mentioned in the bill as having been purchased and improved by the said Samuel P. Matthews, deceased, with moneys derived from income of the property of the plaintiff) Eliza Ann Staggers, to be included in the partition as belonging to his estate.
    And, lastly, it is ordered that it be referred to the Commissioner to take an account of the defendant, Eliza Ann Staggers, as administratrix of Samuel P. Matthews, deceased, and report the state of the same; also the debts that are still unsatisfied, and the assets for payment of the same, according to the principles of this decree, and a scheme for the settlement and distribution of the estate, with leave to report any special matter.
    Copies of the marriage settlement of James L. Mouzon and wife, and the release from Eliza Ann Mouzon to Leonard W. Mouzon, form an appendix to this decree.
    The complainants appealed, and now moved this Court to reverse or modify the decree, on the grounds:
    1. Because, by the terms of the marriage settlement mentioned in the pleadings, the property was conveyed to the trustee for the “ sole and separate use” of the feme evx-pressly “ during her natural life," and that this is true not only as to the corpus, but also as to the income; that the only period fixed for the termination of the “ sole and separate” estate is the death of the feme; and that during its existence no power of disposition over the income in money is granted to her, except to direct its investment, which investments were to be held in trust “ as her separate estate during her life, and the same after her death to be held for the sole and separate use of the children of the marriage;” and that the marital rights of any husband she might have could not attach during the existence of such estate.
    2. Because, if the incidents of an absolute estate attached to the property during the discoverture, yet whatever remained undisposed of, either of corpus or income, at the time of the marriage with Samuel P. Matthews, ipso facto, et eo instanti, became again the sole and separate estate of the feme, with the equitable incidents of such an estate, and entitled to protection as such in this Court, whether the functions of the trustee had previously ceased or not.
    3. Because, if the Chancellor’s construction as to the duration of the separate estate be correct, still, it is respectfully submitted, it was not necessary that the income arising during the coverture with Mouzon should have been invested in the name of the trustee, in order to have impressed on 'it the trusts of the settlement; but that such income, whether it consists of notes for the hire of negroes, bonds for the rent of land, improvements of real estate, or real estate itself, when they can be identified as investments of the income, constitute the separate estate of the feme, and will be followed in this Court against all parties not having a superior equity.
    4. Because the construction of the Chancellor wholly ignores the rights of the issue of the marriage, which were the chief purposes of the settlement.
    5. Because the Chancellor’s decree is inconsistent with itself in this, that if the “ separate estate ” ceased at the death of James L. Mouzon, then the corpus, as well as the income, became the subject of the marital rights of the said Samuel P. Matthews, so far as the personalty is concerned.
    6. Because the only question submitted to the Chancellor was the construction of the deed of marriage settlement, all others being reserved; and the decree of his Honor touching other matters, it is respectfully submitted, is irregular, and contrary to the practice of the Court.
    
      Dozier, for appellants.
    
      Pressley, contra.
   The opinion of the Court was delivered by

Ing-lis, J.

When property has been settled to the separate use of a feme, whether sole or covert at the time, in terms and under circumstances which evince an intention so to extend the effect, it will, by such settlement, be secured against the marital rights of each one of as many husbands as she shall successively take. During each interval of dis-coverture, the property will, indeed, be absolutely subject to her control and disposition, and, by her own act for that purpose, may be aliened as if no such trust existed, but upon each coverture, as it occurs, the " separate use” will revive and attach upon the property, or upon so much thereof as has not been by her, while discovert, so disposed of. (Nix vs. Bradley, 6 Rich. Eq. 43; Tullet vs. Armstrong, 1 Beav.1, & 4 M. & Cr. 390; Scarborough vs. Borman, 1 Beav. 34; 4 M. & Cr. 377; Davies vs. Thornycroft, 6 Sim. 420; Gaffee's Settlement, 14 Jur. 277; 1 Mac. & Gord, 541; 1 Wh. & Tud. Lead. Cas. Eq. 341-5.) The Chancellor has, therefore, correctly indicated that, in every such controversy as the present, the question to be resolved is: What was the intention of the settlement ?

If the subsequent acts and declarations of the parties could be permitted to ascertain the intention in this behalf with which a settlement was executed, there would seem to be left little room to doubt that the operation of the deed of December 10, 1850, which is the subject of the present controversy, was meant to be confined to the particular marriage then in contemplation. The plaintiff, Eliza Ann, to whom the legal estate in the settled property belonged, avers in her bill, in direct contradiction of the claim which the suit prefers, that she supposed that at the death of her former husband, the said James L. Mouzon, the legal effect and virtue of the said deed was at an end;” “ that she was under the impression that the marriage-settlement ceased to operate, after the death of the said James L. Mouzon, upon all the property which she had in her possession which was not included in the inventory of the estate of her first husband.” And in exact conformity with this understanding of the extent of what she had, by her said deed, accomplished, she is found, within six months after the decease of the husband, Mouzon, in immediate contemplation of her intermarriage with, whom the settlement had been executed, taking from the trustee under that settlement an account which embraced the exact period of the coverture up to its close, and granting him a final acquittance and discharge. The legal effect of this discharge is not now under consideration. The trustee also, another party to the deed, and a defendant in this cause, in his answer insists that “the said deed had no further force and effect after the death of the said James L. Mouzon.” And the significant fact, in exposition of what these parties intended to do, and of their understanding of what they had done, is that, from the determination of that coverture until the present time, the trustee under the deed has never acted in the. execution of the trust, nor in anywise, in fulfilment of the duties thereof, intermeddled with the settled property, and, until the origin of this litigation, has never, so far as appears, been called upon so to do, by the cestui que use, who was also herself the creator of the trust. It is thus made very clear, in point of fact, that the parties to the deed of December 10,1850, intended that the trust thereby created for the separate use of the plaintiff, Eliza Ann, should endure only while the particular coverture then in view would last, and should cease with its determination; but this does not produce judicial persuasion of the intention of the settlement.

The material inquiry is, whether this intention appears in the deed itself. This deed is the only authoritative exposition of the purpose of the parties at the time of its execution, and can alone be heard in response to the inquiry, What was the intention of the settlement f In interpreting its utterances, however, it is not inadmissible to seek assistance from the circumstances under which it was executed, and, placing ourselves in the situation in which the parties were at the time, thus the more nearly realize the exact import of their words.

Eliza Ann Burgess held, under the will of her late husband, an estate for the term of her own life, in the whole residue, being the great bulk of his estate, consisting of real and personal property, which was limited in remainder at her death to certain of his kindred, and this estate, with some personal chattels, of no very great comparative value, belonging to her absolutely, constituted her whole fortune. She was about to intermarry with James L. Mouzon, who is described as “an improvident man and an insolvent,” “ largely indebted beyond his ability to pay, having little, if any, estate in his own right, and subject to the claims of creditors.” He had nothing, then, wherewith to endow her, but fortunately she needed nothing; her own was sufficient. But such a marriage, if no barrier were interposed to its legal operation, would imperil this provision for her comfort and support which the bounty of her former husband had made, and put in jeopardy the interests of his kinsfolk, who were entitled in remainder. It was reasonable that some security should be sought against such results, and all that was needed for this purpose was to exclude the legal effect of this marriage upon her property and its fruits. To divest herself of that control over and' enjoyment of these, to which her legal ownership entitled her, so far as was legally essential to this exclusion of the intended husband’s marital rights, was necessary; but no greater or more enduring fetter on that ownership was necessary, and she would not, therefore, be reasonably expected to intend more. Doing no more, when the purposes of that exclusion should be accomplished and ended, the legal proprietorship, with all its incidents, substantially and effectually, if not formally, must result to her.

Under such circumstances, the deed under consideration was executed. Does it in its terms and provisions conform to the requisition which these circumstances, made upon her, or is there something in those terms and provisions which carries its operation forward beyond the immediate mischief which there was present occasion to prevent? The contemplated marriage with Mouzon, and the agreement between them upon the treaty thereof, are recited as constituting the occasion and reason for the execution of the settlement. The trust is for the separate use of the-wife, “ without being in any manner subject to the debts, contracts, control, engagements, or intermeddling of the said James L. Mouzon, his executors, administrators, or assigns, or of any other person or persons whomsoever, claiming or to claim the same or any part thereof, by, through, or under him or them" “ James L. Mouzon, for himself, &c., covenants, &e., that the said Eliza Ann, notwithstanding the said marriage, shall have, take, and. receive the rents, issues, and profits, &c., to and for her sole and separate use, &c., and the same shall be accounted, &c., as a separate and distinct estate of and from the estate of the said James L. Mouzon, and be in nowise liable or subject to him, or the payment of any of his debts.” The investment of the ready money accruing out of the said separate and distinct estate” is to be made “ during the said coverture," in the name of the trustee, or other person, in trust for the wife, but no direction is given for so making investments of the ready money” income accruing after the determination of that coverture.

The property thus acquired with the accumulated profits of the separate estate during the coverture is, upon the death of the wife, to go to the issue of this particular marriage, and if no issue, then to the said James L. Mouzon, if surviving, but no disposition is made thereof upon her death in the contingency of her surviving Mouzon, and there being no issue of the marriage; of the personal chattels owned by the feme absolutely at the execution of the deed, and constituting part of the corpus conveyed thereby to the trustee, no disposition is made to take effect upon her death; and, finally, the covenant for further assurance is by the said Eliza Ann and the said James L. Mouzon. Some of these particulars standing singly might not have a very decisive significance, but standing, as they, do, around the particular coverture in contemplation, and all pointing with converging lines of indication to that cover-ture, as in the minds of the parties at the execution of the deed, they unitedly confine the intention and so the operation of the settlement to that coverture with a power difficult to be overcome. It is a settlement by a feme of her own property in immediate contemplation of a particular marriage, and rendered peculiarly necessary by the condition and habits of the intended husband ; reciting this marriage as its occasion, and professing to be in execution of one of the terms of the treaty therefor; excluding the marital rights of the particular husband by name; making provision for the contingencies of the particular coverture only; furnishing a check against the improvidence of the husband, in the motive to economy and thrift in the management and use of the income of her property, during the coverture, presented by the dedication of the savings from that income to a provision for the husband himself or the issue of his union with her, after her death; leaving all her interests in the subject-matter outside of and beyond that coverture to the protection of the powers and rights of ownership, which, upon the determination of the cover-ture otherwise than by her death, must result to her, and in no part expressly extending its terms to embrace any subsequent marriage, or affect the rights of any after-taken husband. It discloses not so much a general purpose to secure the separate enjoyment of the property to the feme, as a special purpose to protect it against the husband then to be taken.

The property constituting the corpus of the principal estate is conveyed to the trustee, his executors, administrators and assigns “for and during the term of the natural life” of the feme; the trust is, of this corpus, “ to and for the sole, separate and exclusive use,” &c., of the feme, “for and during the term of her natural lifeand the new acquisitions made with the surplus profits are to be taken as the separate estate of the feme, “for and during the term of her natural life.” These provisions are supposed to manifest the intention of the settlement” — that the separate use should endure throughout the life of the feme, and, therefore, must exclude the marital rights of every husband afterwards taken.

The legal estate in the trustee is intended only to support the separate use, and should be large enough for that purpose. As the coverture upon which the feme was about to enter might be determined by her own death, the separate use might need to endure for the term of her' actual life. And the separate "use, even if limited to the coverture, was in legal contemplation a life-estate. In the great mass of the property constituting the corpus of the principal estate, she held only a life-estate, and she conveyed to the trustee all she had therein. If she had held a larger estate she would probably have conveyed it, either by technical description, or in general terms, without words of limitation. The legal interest of the trustee in the new acquisitions, which were to constitute the corpus of the accessory estate, is not so limited; but is general in its terms, open to be construed just so large as the necessities of the trust to be supported by it require. This circumstance does not'seem entitled to much weight.

The duration of the “separate use” might, it is true, have been limited in express words, to the continuance of the contemplated coverture, but this, as has been remarked, would have been, in the regard of the law, equivalent to an estate “for the term, of her own life," because possible to endure so long, though liable to be sooner determined, by the determination of the coverture otherwise than by her death. If, therefore, the other parts and provisions of the deed clearly show, as they do here, that the separate use was intended to be confined to the particular coverture, this description of the quantity of the estate she took, under the deed to her separate use, would'not be so inconsistent as by its technical force to control such intention and extend the operation of the deed beyond that coverture. In Benson vs. Benson, 6 Sim. 201, the separate use was expressed to be “for and during the natural life" of the feme, and this was insisted on; yet the .separate use was not extended to the second coverture. So, in Knight vs. Knight, 6 Sim. 199, the trust was held to be impliedly for the life of the feme, yet the separate use was confined to the one coverture. And in each case the explanation was, that the party creating the estate seemed to have contemplated the determination of the coverture by the death of the wife alone, and not to have adverted to a determination by the death of the husband, the wife surviving. In England, the separate use is not fettered, as with us, by the disability of the feme, and an, express clause against anticipation is now usually introduced into settlements there to protect such an estate against the husband’s supposed control over the wife’s will. The creation of the separate estate and the restraint of anticipation are, therefore, two distinct things, and may or may not be commensurate. The precise question in Qaffee's case (14 Jur. 277,1 Mac. & Grord. 541) seems to have been whether, under the terms of the particular deed there, the restraint on anticipation was or was not confined to a particular coverture. It is matter of regret that access cannot be had to the report of the final hearing and judgment. It is difficult, with the facts as reported in 7 Hare, 101, to be reconciled to the conclusion which seems to have been finally reached in the particular case. But the effect of the judgment, so far as it settles any principle, is represented to be, that "a restraint on the power of alienation in a settlement for the separate use of a married woman will be effectual during each and every successive coverture, whenever it is imposed in or by the clause which creates or limits the estate, and there is nothing in the rest of the instrument to warrant an opposite conclusion.” (1 White & Tudor Lead. Cas. 544, Am. Note.) And Lord Chancellor Cotten-ham is reported as saying, in delivering his judgment: “It must depend on the construction of the particular words used whether the provisions for the separate use and against anticipation are applicable to the whole of the life-estate given, or only during the then existing coverture.” (Hill on Trustees [420], Note 3.) In these propositions nothing is perceived inconsistent with the present judgment. This Court discovers no error in the judgment of the Chancellor that the separate use created by the deed of December 10,1850, is “ limited, by the proper construction of the deed, to the coverture in contemplation of which it was made.” '

Under the terms of the settlement, the issue of the marriage with Mouzon is entitled to an absolute estate in remainder upon the death of the plaintiff, Eliza Ann,.in the corpus of what has been herein called the accessory separate estate, and, in the circuit decree, the “ permanent separate estate.” This corpus is made up of the property of whatsoever kind, “ begotten, gained or made” of the profits of the principal separate estate — that is, the estate consisting of the property in existence at the execution of the deed, and conveyed therein to the trustee. The acquisitions, which thus constitute this corpus of the accessory estate, arise from investments which, under the directions of the deed, have been made or ought to have been made, of the surplus cash income or profits of the principal estate, accruing during the coverture with Mouzon, in “securities” or “property.” The principal estate was a planting interest, consisting of a plantation, slaves, stock of work, animals, cattle, &c., and was, doubtless, intended to' be maintained as such. The feme, cestuy que use for life, was entitled, under the deed, “to have, take and receive the rents, issues, proceeds and profits ” for her separate use, applying the same to the current expenses of the estate, and to her own and, incidentally, her family’s maintenance and up-bringing according to her discretion. These rents, issues, profits and proceeds,” most probably, were expected to be, and were almost wholly received, enjoyed and applied in Icind, and, for the residue, according to the custom of the country, by exchanging the produce of the estate in kind for needed articles of personal or family consumption not there produced, which mode of use and enjoyment is not, in popular regard, very distinguishable from the other. If the annual issues and proceeds of the separate estate exceeded at any time these primary uses for which it was created, the excess was realized in cash, and is hence called “ready money accruing out of the said separate and distinct estate” — the yearly income not consumed in the current yearly expenses of the estate or the life-tenant, but remaining a surplus over and above these. Such “ ready money” was required by the deed to “be placed out at interest” or “invested in property.” The directions of the cestuy que use for life were to be taken and followed in the selection of securities and property, but the dedication of this surplus to investment subject to the trusts declared in the deed (and this remainder to the issue was one of them) was made by the deed itself. If there was in fact, therefore, accruing during the coverture with Mouzon, any such surplus income as has been herein indicated, any “ready money” as now defined, any yearly issues and profits not in fact consumed by the life-tenant in yearly use and expenses — this trust in favor of the issue must attach thereupon, wherever it can be followed, according to the principles of equity, in any property or securities in which it has been invested, and, in the absence of investment, the accumulations of such surplus profits, in whosoever hands, and in whatever form, must stand in the place of investments. The directions of the “cestuy que use for life as to the particular mode of investment might relieve the trustee from responsibility for an injury or loss resulting from such mode of investment, but the absence of such directions could not discharge any actual “ ready money” surplus from the trusts impressed upon it by the deed itself. Thus, for illustration, it may possibly be, and it seems probable even, that the balance' which was found due by the trustee upon the accounting mentioned in the bill, “foj; moneys produced by the separate estate,” and in satisfaction of which he conveyed the tract of land afterwards sold to McOlary, was such an accumulation of surplus profits or ready money” income. And it may be that the purchase with the income of the separate estate of articles of property, the use and enjoyment of, which does not itself consist in their consumption, as it does in the instances of articles of food and clothing, would constitute ' evidence that the income so applied was surplus in the sense here indicated, and would affect such articles of property with this trust. An inquiry by tbe Commissioner on this entire part of the case, as wide in its range as is herein indicated, is necessary, and such inquiry is hereby ordered. The details of such inquiry above adverted to for illustration, not having been discussed at the hearing, are not intended to be concluded by any thing here said, but are open for adjudication if it shall be necessary, upon exceptions on either side to such report as the Commissioner shall finally make upon the whole matter here referred for inquiry. The decree of the Chancellor, in so far as it restricts the subject-matter of the trust in favor of the issue to such part only of the income of the principal separate estate as the feme, cestuy que use for life, chose from time to time to apply to the formation of the permanent” (called herein the accessory) “ separate' estate, as indicated by investments under her direction in the name of the trustee,” is modified in conformity with the present judgment, and in all other respects it is affirmed.

Dunkin, 0. J., and Wardlaw, A. J., concurred.

Decree modified.  