
    
      Mitchell v. Moore & als.
    April Term, 1861.
    Richmond.
    (Absent, Aleen, P.*)
    1. Marriage Settlements—Effect on Harital Rights. —A deed of marriage settlement will not divest the marital rights of the husband to a greater extent than the terms of the deed clearly require.
    2. Same—Power of Disposal—Effect of Failure to Dis= pose of Personalty.—A deed of marriage settlement, settling the wife’s property, provides that the wife dying in the lifetime of her husband may dispose of the property by deed or will; but does not dispose of it upon her failure to execute the power given her. The husband surviving her is entitled to the personal property.
    3. Same—Investment of Trust Fund in Realty by Husband—Effect.—if a part of the trust fund being personalty, is sold and invested in real estate purchased by-the husband; whether it was sold rightfully or wrongfully, the husband is entitled to it, and the subject in which it is invested.
    A marriage being about to take place, between Thomas P. Mitchell and Virginia B. Harvey, a deed bearing date the 14th day of November, A. D., 1849, was executed by the parties and Wm. M. Harvey, by which after reciting the intended marriage, and that Miss Harvey was possessed of real estate, slaves and other personal property, all of said property was conveyed to her brother William M. Harvey, upon the folr lowing trusts—“in trust for the said Virginia B. Harvey until the solemnization of the said intended marriage; then upon trust, that the said William M. Harvey, his executors, &c., shall permit the said Thomas P. Mitchell during the joint lives, of the said Thomas P. Mitchell and Virginia B. ■ *Harvey, his -intended wife, to have, receive,.take and enjoy all the .interest and profits of the said property hereby assigned, to and for his own use and benefit; and from and after the decease of such of them, the said Thomas P. Mitchell and Virginia B. Harvey as shall first happen to die; then upon trust that the said William M. Harvey, his executors, &c., shall assign, transfer and pay over all the said property to the said Virginia B. Harvey, in case that she survive the said Thomas P. Mitchell; but if she die before him, then to such person or persons, and in such manner and form as the said Virginia B. Harvey shall, notwithstanding her coverture, by any writing or writings under her hand and seal, or by her last will and testament in writing, direct, limit or appoint; to the intent that the same may not be at the disposal of or subject to the control, debts or engagements of the said Thomas P. Mitchell her intended husband.”
    This deed was acknowledged by the parties, on the day of its date, before two justices of the peace, and duly admitted to record; and soon thereafter the marriage took place. At this time it seems that Mitchell has no property, and was in embarrassed circumstances; or at least was apprehensive of an effort to subject him to large liabilities for a house in New Orleans, with which he had been connected either as clerk or partner.
    On the 13th of Eebruary, 1850, an agreement was entered into between Thomas Preston and Thomas P. Mitchell, by which Preston agreed to sell to Mitchell a tract of land in the county of Bedford containing six hundred acres or more, for which Mitchell was to pay to Preston four thousand dollars about the first of the next March, when possession of the land was to be delivered to Mitchell, and of the balance of the purchase money, one thousand dollars was to be paid at the expiration of two years, and one thousand dollars at three years. And Preston at the same time sold to Mitchell personal *property upon the place which was to be taken at valuation, and which amounted to about seven hundred and forty dollars.
    . Among the property embraced in the deed of marriage settlement was bank stock, and state bonds, and a blank power of attorney to the cashier of the bank to sell the stock and bonds, was presented to the trustee by Mitchell. This was endorsed on the back with the approval of Mrs. Mitchell, and having been executed by the trustee, the stock and bonds were sold, and the proceeds, four thousand dollars, was paid to Preston in part payment of the land aforesaid. The receipt executed by Preston for this payment is in the following words— “Received, Bedford county, Virginia, April 12th, 1850, of Mrs. Virginia B. Mitchell, four thousand dollars, in part payment of six hundred and forty and a half acres of land, called Preston place, in five miles of Eiberty, Bedford county. Given under my hand, day and date above written.”
    Mitchell took possession of the land at the time appointed in the agreement, and he and his wife continued to live upon it, during her life. In July 1850 she died without issue, and without having exercised the power of disposition vested in her by the marriage settlement.
    In August 1850, and after the death of Mrs. Mitchell, Preston and wife conveyed the land to Thomas P. Mitchell; who, in September of the same year, executed his bonds to Preston for the balance of the purchase money and the value of the personal property purchased; and these bonds were paid off by him in January 1853. ' He had been in the possession and management of the trust property from the marriage until the death of Mrs. Mitchell, the trustee though he accepted the trust, not interfering with the property.
    ' On the 26th of July, 1855, David E. Moore and Elizabeth *his wife, the latter of whom was one of the heirs and next of kin of Mrs. Mitchell, filed their bill in the Circuit court of Bedford county against Thomas P. Mitchell in his own right and as administrator of his deceased wife, and the other heirs and next of kin of Mrs. Mitchell, in which they set out the facts of the marriage settlement and marriage as hereinbefore stated. They charged that the purchase of the land from Preston was for the benefit of Mrs. Mitchell, and was paid for out of her property, though the negotiation with Preston was conducted by her husband. That at the time of the marriage Mitchell was insolvent, and wholly without pecuniary means, and that it was intended, by the execution of the marriage settlement, to intercept the marital rights of Mitchell in regard to the property of his intended wife, and to exclude him from any interest therein in case he survived her. And they charge that after the death of Mrs. Mitchell, Thomas P. Mitchell wi'ongfully and unjustly procured a deed of conveyance of the land from Preston and wife as if he had been the purchaser thereof, and prevailed on Preston to take his bonds for the two deferred payments, reserving a lien on the land for their security.
    Mitchell answered the bill. He says that the marriage settlement was executed upon his suggestion. That he was not insolvent and wholly without pecuniary means; but that he had been a clerk in a large mercantile house in New Orleans, receiving for his services a portion of the net profits of -the firm, and as such he had transacted the greater portion of the business of the concern.—That this house failed in 1845, and although he knew that he was neither legally nor morally bound for its debts, yet fearing that there might be an effort by their creditors to complicate him in the embarrassments of the said firm, he felt it to be his duty to apprize his intended wife of this state of affairs, and to suggest to her the ^propriety of making such a settlement of her property upon herself as to protect it against the claims of creditors during coverture, and to enable her if she desired it, to dispose of it in her life time. He denies that bj" the settlement his marital rights were in fact or were intended to be, in any wise or to any extent, abridged, limited or intercepted otherwise than to protect the said property from liability for his debts during coverture, and to reserve to his intended wife the power of disposing of the same as therein provided, during their joint lives, and the further right to the property in the event of her surviving him. He denies that the land was purchased of Preston for the benefit of Mrs. Mitchell, but avers that it was purchased by himself for his individual benefit. He admits that the four thousand dollars was paid by the sale of the bank and state stock of Mrs. Mitchell, but avers it was done with her full consent; that she desired and authorized him to use, manage and dispose of the property for his own purposes and in his own way, and the trustee acquiesced and interposed no obstacle to the execution of the wishes of his wife ; but furnished him facilities for carrying out her wishes.
    The foregoing are all the statements of the bill and answer, which are necessary to present the merits of the case. There was some evidence tending to show that Mitchell was without pecuniary means at the time of his marriage.
    The cause came on to be heard on the 5th day of May, 1858, when the court held that the plaintiffs and the other heirs of Mrs. Mitchell were entitled to the tract of land purchased of Preston ; but that Mitchell was entitled to the slaves and other personal property embraced in the marriage settlement. And the decree was that Mitchell should surrender the tract of land to the heirs of his wife, by a proper deed of release with special warranty; and should render an account of the rents, issues *and profits thereof since the death of Mrs. Mitchell; and that the bill should be dismissed as to the personal property. Prom this decree Mitchell obtained an appeal to this court.
    Slaughter and Morson, for the appellant.
    Grattan, for the appellee.
    
      
      He was related to some of the parties.
    
    
      
      Marriage Settlement—Effect on Marital Rights.—In Coatney v. Hopkins, 14 W. Va. 353, the court said: “A deed of marriage settlement may be so framed as to deprive the husband of all his marital rights; but he will never be deprived of them to a greater extent than the terms of the deed clearly require. Mitchell v. Moore et al., 16 Gratt. 275.” See also, 1 Va. Law Reg. 651; 1 Min. Inst (4lh Ed.) 347.
    
    
      
      Same—Power of Disposal—Effect of Failure to Dispose of Personalty.—As further authority for the proposition that, when, by the settlement, the wife is given the right of disposing of certain property by deed or will, but dies, having made no disposition of it, no separate estate is created thereby, and the husband surviving is entitled as her distributee to the personalty, see Andes v. Roller, 98 Va. 623, 37 S. E. Rep. 297; Coatney v. Hopkins, 14 W. Va. 354; Beard v. Beard, 22 W. Va. 139; in all of which cases the principal case is cited as authority. See also. Pickett v. Chilton, 5 Munf. 467; 1 Min. Inst. (4th Ed.) 347.
    
   ROBIJRTSON, J.

A deed of marriage settlement may be so framed as to deprive the husband of all his marital rights; but he will never be deprived of them to a greater extent than the terms of the deed clearly require.

In this case the deed of settlement only excludes the rights of the husband, surviving his wife, in the event of her exercising the power of appointment conferred on her. She died without having exercised that power, and leaving her husband surviving; so that he became entitled to all the personal estate embraced in the settlement; subject only to the payment of the debts for which it was bound, if any such there were, funeral expenses, and charges of administration.

Numerous authorities might be cited; but it is sufficient to refer to the case of Pickett & wife v. Chilton, 5 Munf. 467; which is directly in point, and decisive of the question.

The decree therefore is right so far as it adjudges in favor of the claim of the husband to the personal fund, and the application of the appellees to have it corrected in this particular must be denied.

It is difficult to understand upon what principle it was held that the heirs of the wife are entitled to the whole of the land purchased from Preston. The contract for the purchase was made by the husband in his own name, and on his own behalf. The price paid was six thousand dollars; of which four thousand only were paid out of the trust fund, the residue being paid by the husband, *after the death of the wife, in discharge of his own bonds, and with his own money; the trust fund never having been at any time bound therefor.

The most, it would seem, that the heirs of the wife can claim, with any show of plausibility, is that the four thousand dollars, which were applied out of the trust fund in part payment for the land, should be treated as realty; and that they are entitled to it, or to a proportional part of the land.

In considering this question it is unnecessary to determine whether, under the deed of settlement, any investment of the personal fund in realty could be legally made during coverture; because, if it be conceded that it might have been, there is nothing whatever in the case to show that it was ever in fact made, or intended to be made'. The allegation of the bill that the purchase was made by the wife, or by her husband for her and on her behalf, is not supported by proof, and is denied by the answer. The only circumstance connecting the wife in any way with the transaction is that the payment of the four thousand dollars was made with her assent from the proceeds of sale of state bonds and bank stock constituting part of the trust fund, and the receipt taken as for so much money paid by her. The effect of this was to show that her husband was indebted in that amount to the trust fund, and to create for its payment an equitable lien upon the land purchased by him. Whoever might be entitled to this portion of the trust fund would of course be the person authorized .to demand payment, and.enforce the lien. In the event, which has happened, of the death of the wife .without having made an appointment, the husband himself is so entitled. There can be no doubt of this if the sale of the state bonds and bank stock and the application of the proceeds in part payment for the land be regarded as a legal and proper disposition of so much of the trust fund. In that *case the husband would be as much entitled to it as a debt due from himself and for which his land ■ was bound in equity, as if it had remained in its original form of state bonds and bank stock.

If on the other hand the sale and application be regarded as a breach of trust'it seems, equally clear that the husband is entitled. When a breach of trust has been committed the party injured has the right to pursue the fund through all its transmutations; and may, if he chooses, elect to take in its stead the property acquired with it. The party injured is of course the party entitled to the fund in its original form; and its original character- continues until-the election to take what has been acquired in place of it has been made, and the conversion is thus perfected.

In this case it is not pretended that during the life of the wife any complaint was made of the breach of trust, or that there was any effort to pursue the fund. Its original character as personalty therefore remained impressed on it at the time of her death. On her death and in default of appointment the right to the fund and to all remedies for its recovery devolved upon the husband.—The subject is one in which the. heirs of the wife have no interest or concern ; and the election of the husband to take the land in lieu of the money would be for .his own benefit.

The bill does not ask for relief as to the real estate of the wife conveyed by the deed of settlement, and the husband in his answer disclaims all title to it. As the only relief prayed for is in reference to the personal fund, the bill should have been wholly dismissed, the heirs of the wife having no interest therein.

The other judges concurred in the opinion of Robertson, J.

The decree-of the court is as follows: *The court is of opinion that upon the death of Mrs. Mitchell without exercising the power of- appointment given her by the deed of the 14th day of November, 1849, the personal property conveyed therein passed to her husband, the appellant, and the real estate to her heirs at law. And the court is further of opinion that the property conveyed to the appellant by Thomas P. Preston and Susan his wife, is not to be regarded as a part of the realty subject of said trust, but that the same, to the extent of the money advanced by Mrs. Mitchell to the appellant, and invested by him in the said land, is to be regarded as part of the personalty subject of said trust, which upon her death without exercising said power of appointment, devolved upon him as her surviving husband and administrator. The court is therefore of opinion that the appellant could not be required to surrender and convey said land to the appellees her heirs at law, nor to account for the rents and profits thereof. The court is therefore of opinion that there is no error in so much of said decree as dismisses the bill as to the slaves and personal property in said deed mentioned ; but that so much of said decree as relates to the property conveyed to the appellant by said Preston and wife, is erroneous. The said decree is therefore reversed with costs, &c.—and this court proceeding to render such decree as said Circuit court ought to have rendered, it is adjudged, ordered and decreed that said bill be wholly dismissed, with costs, &c.  