
    Pickett and Wife and Others v. Chilton.
    Decided, March 11th, 1817.
    i. Antenuptial ll&rnage Settlement— Construction— Power of Disposal — Failure to Dispose of Personalty —Rights of Husband. — Construction of a marriage settlement, by which the personal estate of the intended wife was conveyed to Trustees for her use until the marriage; then, upon trust that the husband and wife should enjoy the profits during the coverture; and, afterwards, that the Trustees should assign, transfer and pay over all the said .property (that might remain) to the wife in case she survived the husband; but, if she died before him, then to such person or persons, as she should, notwithstanding her coverture, appoint by Deed or Will, “to the intent that the same might not be at the disposal of, or subject to the control, debts, forfeitures or engagements of the' husband;" with a provision that, in the event of her surviving him, and claiming any part of his estate, by right of dower or otherwise, the Trustees should hold for his benefit and that of his executor, &c: but without any provision for the event of his surviving her, and her failing to mate any appointment. The husband having survived the wife, who made no appointment, was entitled to the property as her administrator, and not compelled to malte distribution to her children by a former husband.
    2. Appellate Practice — Record—Statements by Clerk in. — The Clerk’s stating in the transcript of the Record, that certain Answers, which are filed, and copied in such transcript, were not noticed by the Court, is not to be relied upon by the Appellate Court, if the contrary may be inferred from the jjgcrgg itself. 1
    3. Decree — Inferences.—If Lhe caption of the Decree names, as defendants to the cause, certain persons whose Answers are filed, and the Decree states that the cause was heard upon the Bill, Answers and Exhibits; it may be inferred that the Answers of those persons were noticed by the Court,
    4. Chancery Practice — Omission of Replication — Effect. — The only effect of the omission of a Replication to an Answer is that all the facts stated in such Answer are admitted. See Kennedy v. Baylor, 1 Wash. 163.
    5. Interlocutory Decree — Reversal—No Day Reserved to Infant Defendant. — It is not a sufficient ground for reversing an Interlocutory Decree, that no day was given to an infant defendant to shew cause against it, after he should come of age; because such omission may be corrected in the final Decree.
    On the 27th of October, 1803, upon a contemplated intermarriage between the Ap-pellee and Mrs. Felicia Chilton, the widow of Orrick Chilton deceased, who was possessed of a considerable personal estate, and had then living two children by her first husband; a Deed of Trust was executed by the said parties, reciting an agreement between them, “that John Chilton (the Ap-pellee) should, after the said intended marriage, ^receive and enjoy, during the joint lives of them the said John Chilton and Felicia Chilton, the interest and occupation of the said personal estate, and also that the same, and the interests and profits thereof from and after the decease of such of them the said John and Felicia, as should first happen to die, should be at the sole disposal of the said Felicia, notwithstanding the coverture;’’ and that, if Felicia Chilton survived the Appellee, she should have no part of his real or personal estate, by virtue of her title to dower, or as his administratrix: in pursuance of which agreement, and in consideration of three dollars paid to Mrs. Chilton by the Trustees, she conveyed the whole of her said personal estate to George Christopher and Thomas Chilton, their Executors, &c., upon trust, “for Felicia Chilton, and her assigns, until the solemnization of the marriage, then upon trust, that they the said Trustees, their Executors, &c. should permit the said John Chil-ton and Felicia Chilton, his intended wife, to have, receive and enjoy all the interests, and profits of the said property, assigned to and for his own use and benefit, and from and after the decease of such of them, the said John and Felicia, as should first happen to die, then upon trust, that they the said Trustees, &c. should assign, transfer and pay over all the said property (that may-remain) to the said Felicia Chilton in case she survived John Chilton, but, if she died before him, then unto such person or persons, and at the time, and in the proportions, as she the said Felicia should, notwithstanding her coverture, by any writing or writings, under her hand and seal, attested by three or more credible witnesses, or by her last will and testament, in writing, to be sealed, &c., and published before the like number of witnesses, direct, limit or appoint; to the intent that the same might not be at the disposal of, or subject to the control, debts, forfeitures or engagements of the said John Chilton.” Then followed a provision that, in the event of her surviving him, and claiming any part of his estate, by right of dower, or otherwise, the Trustees should hold for his benefit, and that of his Executors, &c.
    No provision was made in the Deed for the event, which afterwards actually occurred, of the Appellee’s surviving his wife, and her failing to make any appointment.
    *After Felicia Chilton’s death, George Christopher took administration on her estate, and as administrator or as trustee, continued to hold the property and receive the profits, and so continued to hold at the time the suit was instituted, except that he sold some of the property to John Chilton himself. This administration was afterwards revoked, and granted to the Appellee. Her children by her first husband, together with Steptoe Pickett,, (who intermarried with one of them,) claimed and afterwards had possession of the balance of the property included in the said Trust Deed.
    The Appellee, in 1810, about four years after the death of his wife, brought suit in the Chancery Court of Williamsburg, against the 'Trustees of those infant children, to recover the said properly, and set forth in his Bill the foregoing circumstances; also alleging that he neither knew himself, nor was able to prove the number of the negroes, stock, &c., or the quantity and value of the other personal property, of which the 'Trustee Christopher had possessed himself under the Deed, or to what amount they had increased. He therefore prayed a discovery, and to be relieved, &c.
    Thomas Chilton was appointed guardian ad litem to the infant defendants; and the answer of 5'elicia A. C. Chilton, by her said guardian, was filed among the papers in the cause, but was said by the Clerk, in the transcript of the Record, not to have been “noticed in the proceedings at rules, or in Court.”
    The Chancellor granted an Injunction, restraining the defendant George Christopher from disposing of, or otherwise making away with any of the property, mentioned in the Deed, and also enjoining him, and all others concerned, from proceeding in a suit against the complainant, in the County Court of Westmoreland; for the amount of his, the complainant’s purchase of property of the said Felicia Chil-ton, sold by the said George Christopher.
    The defendant, George Christopher, in his Answer stated that, at the request of Felicia Chilton, and with the consent of John Chilton, he drew the Deed of Trust in question, on the day of their intended marriage; that he was directed by both parties to draw it so that, on the death of either, the survivor was to have no interest in, or control over, the estate of the one first dying; but that, in couse-quence of his want of skill *as a draftsman, and his being greatly hurried in making the draft by the knowledge that the marriage was delayed only ’till the contract was finished, he omitted to insert in the Deed a clause, providing that in the event of Mrs. Chilton’s dying before her husband, he should have no interest in, or control over, her estate. The Respondent averred, however, that the Deed was understood by both parties as having that effect; that, so strong was the impression of John Chilton, the complainant, that such was its meaning, that he even solicited the Respondent to qualifj' as administrator of the estate of Felicia Chil-ton, and, at the sale of her estate by him as administrator, purchased of her perishable property to the amount of lOSl; and, in January following, when the trust negroes were hired out, having been also previously advertised by this defendant as Trustee and not as administrator, the complainant attended the hiring thereof, and assisted this defendant in carrying on the same, by distinguishing the trust negroes from others, and became a security in some of the bonds, taken at the said hiring, and at neither sale, nor hiring did he the complainant, in the slightest manner state any claim to the said property, or any of it; that when the time of credit, allowed by this defendant on the sale of the trust property, had expired, he instituted the suit against the complainant for the purpose of recovering the amount of his purchase at the sale aforesaid, and after that he heard of the claim of the complainant, as set forth in his Bill.
    The defendant farther stated, that, by mistake, he included in the Deed four negroes, to which he then had himself the legal title, the nature and grounds whereof, he set forth at length; claiming them as his own.
    Steptoe Pickett and Sarah Orrick his wife, late Sarah Orrick Chilton, filed their Answer contending that, under the Deed, they were entitled to one half and Felicia A. C. Chilton to the other half of the property, of which their, mother Felicia Chilton died possessed.
    The deposition of George Christopher, to the same effect, with his Answer on the subject of the omission in writing of the Deed, was taken and hied; but endorsed, “excepted to by the plaintiff, because there was no order for taking it, the deponent Was a partj interested, and incompetent to give evidence in the cause.”
    ^Sundry other depositions were taken, some with a view to prove what was the intention of the parties to the Deed, from parol declarations of the husband, and others, upon collateral points.
    The cause came on to be heard in Fred-ericksburg, (to which Court it had, in the mean time been transferred by law,) on the 19th of September 1815, and the Chancellor, by an interlocutory Decree, ordered that the complainant should recover the slaves and other property, included in the said Deed, and that the Appellants should deliver them up, and that Christopher, the Trustee, should, for the time he held them, account for their hires, &c.
    From this Decree, the defendants, Pickett and wife and Felicia Anne Corbin Chil-ton, upon their petition, were allowed an appeal to this Court.
    Deigh, for the Appellants.
    The decree is founded on the opinion, that, as the marriage settlement, of October, 1803, contains no declaration or limitation of trust, beyond the duration of the coverture of John and Felicia Chilton, the remainder of the estate thereby settled, in the event, which has actually happened, of the wife dying without eicercising her power of appointment over the settled estate, is in no wise affected by the settlement; and her husband is entitled to it, either jure mariti, or as administrator of his deceased wife. But I contend, that, according to the just construction of the settlement, taken by itself, and without regard to extrinsic evidence, the wife ought to be considered as a feme sole in respect of all the settled estate; that her husband, by that deed, renounced all his marital rights, whether to accrue before or after the coverture determined, and his right of administration among the rest; and consequently, that the settled estate devolved to the defendants, the only children of the wife.
    The stipulation on the wife’s part in favour of the husband, expressed as the consideration that moved him to this settlement of her property, was, that she would by the same instrument, renounce all benefit of his estate to be acquired by the marriage; as, dower of his real, distribution of his personal, and even the right of administration on his estate, should she survive him. Hence, it is a natural and just construction of *the corresponding stipulation on the husband’s part in the wife’s favour, (viz. that her property should be at her sole and only disposal, notwithstanding the coverture) that, as it is correlative, so it was intended to be co-extensive with the preceding stipulation on her part, in his favour, in respect of his estate. 'Fairness and reciprocity was undoubtedly intended at the time; but there will be no reciprocity, if the Chancellor’s construction obtain.
    That the husband meant by this deed, to renounce all interest in the settled estate, that he might acquire jure mariti, and indeed to claim no interest in it, but what he took under the deed, is apparent from another consideration. It is declared, that the profits of the settled estate should enure to his use during the coverture: a provision wholly unnecessary, if his present pretensions are correct; for, by mere force of his marital rights, he would have been entitled to enjoyment of those profits during the coverture, unless there had been some express negative stipulation to the contrary. Therefore, this express affirmative stipulation on that point,- forestalled and waived his general rights as a husband, in respect of the settled estate, during the coverture, much more after it. It shews, that the only interest, the parties intended the husband should take, should be derived to him from the grant, contained in the deed, and not from any general marital right.
    It is expressly declared in the deed, that it is made, to the intent that the settled estate may not be at the disposal, or subject to the control, &c. of the husband. That it should not be at h's disposal, or subject to his control, when? After the coverture: for It is expressly provided just before, that during the coverture, he shall, jointly with the wife, have possession of tne estate, and he alone enjoy the profits. True, this covenant is not drawn out in technical form: but to make a good covenant no formality is required. It is still a covenant on the husband’s part, and binding on him, however awkwardly expressed ; a covenant, of which I humbly suppose the plain necessary construction is that, I give to it; which, if considered as executed by this deed, is a direct bar to the pretensions the husband now sets up; which, if executory, the Court will compel him to execute.
    *This covenant on the husband’s pait, in the wife’s favour, is followed by one on her part in his favour, which makes it quite clear, in my apprehension, that, according to the true intent and effect of this deed, the husband thereby renounced his marital rights, in respect of the settled estate, in the event that has actually happened. There is one event, very different from the actual case in which it is provided, that his marital rights shall be restored to him: it is provided, that if the wife should ever claim and recover any part of the real or personal estate of the husband, as doweress of' the real, or dis-tributee of the personal, or as his adminis-tratrix, in that case, the trustees shall stand possessed of the whole of the settled estate, in trust for him, his Executors, &c. Expressio unius est exclusio alterius. Here is one case, and only one, in which the husband stipulates that his marital rights shall avail him. He waives and renounces them, therefore, in every other event.
    As against the infant defendant, the proceedings are certainly irregular.' There is no replication to her answer. And this decree, deeply affecting her interests, and final, I presume, in respect to her, gives her no day after her attainment to full age, to contest the decree.
    Parker for the Appellee.
    The general right, which a husband has to the personal property of his wife in the event of his surviving her, and becoming her administrator, free from the obligation of distribution, is not questioned, and is unquestionable.
    The only question then, in this case, is, whether the Appellee by the deed of October, 1803, has waived or renounced his rights in the event, which has occurred.
    The counsel for the Appellants, (Mr. . Eeigh) admits there is no express waiver, and that no express provision is made for this case, although there is such provision for almost every other possible case. But he contends that, by comparing the several clauses of this deed with each other, it will appear to have been the manifest intention of the parties, that the husband, by the deed, should renounce all his marital rights, and that the Court ought to effectuate such intention; because,
    The wife renounced all her rights to his estate; and it was reasonable the stipulation on the husband’s part should be reciprocal; and that the Court should so construe it.
    To this I answer. That the deed must be construed according to the stipulations on the face of it, and not according to the reasonableness or unreasonableness of its provisions, to be ascertained by extrinsic matter.
    In this case, before the Court can say that the agreement was unreasonable, they must look to the situation of the parties, dehors.the deed.
    If the wife had a large property, and the husband none, the agreement would not be unequal, because the husband would be surrendering his marital rights, during coverture, and his right as survivor, if she chose to make an appointment, for her right, in the event of surviving him, to nothing.
    So, if the wife had a large personal, and the husband only real estate or slaves, the husband Is giving his immediate interest in a fee simple for her possibility for life.
    The reasonableness and reciprocity of the stipulations would then depend on the amount and nature of the estate respectively.
    If, as would seem from this deed, the husband as well as the wife had some property, still the husband could not reasonably be expected to give up all his marital rights, entitling him to a fee in the whole, for her possibility of a life estate, in the event of her surviving him.
    Such a stipulation is neither reasonable not reciprocal, and therefore nothing on this account is to be presumed against the husband.
    But, 2dly, says Mr. Leigh, the husband has renounced his rights, because the deed stipulates that, during the coverture, he shall have the interest and profits of the settled estate; a provision which would have been (as the counsel contends) wholly unnecessary, if his present pretensions are correct.
    The answer is obvious. The legal estate, by the deed, passed to the Trustees; and, if this provision had not been made, so far from the husband’s taking, during the coverture, or during the existence of the trust, any thing jure mariti, he would have taken nothing. His right to take jure mariti, was revived 'only when the trust ended, which, by her death without appointment, (he surviving her,) did end.
    Again; the declaration in the deed, that its stipulations were made with the intent that the property should not be at the disposal or subject to the control of the husband, is relied on; because it must, (as the counsel argues) be intended to mean that, after the coverture, it should not be subject to such disposal or control; since, during the coverture, the husband has a right to the enjoyment of the property ; a provision incompatible with the Appellee’s claims.
    On examining this part of the Heed, it is evident that the declaration is intended to apply during the coverture; and after the coverture if she makes an appointment. That is, the husband’s power of disposing of the estate, although he may take the profits, is controlled during the coverture, and after, if the wife chooses to exercise her power of giving it from him, and in no other case.
    The mistake of Mr. Leigh is in assuming the proposition that, during the cov-erture, the property, by the deed itself, was under the. control, and at the disposal of the husband, and that therefore a provision to restrain him, would have been incompatible with the other stipulations of the deed.
    Lastly, it is contended that the covenant of the wife, that, if she survived the husband, and claimed any part of his estate, the Trustees should hold for him, his Executors, &c. excludes the idea that his rights were to revive in any other case, “Exprésalo unius est exclnsio alterius.”
    Upon examining the deed, it will be seen why this covenant was introduced, and what its operation was plainly intended to be. It was intended not to exclude the husband’s right in cases not enumerated, but to prevent her from claiming both estates. It was operative only in the event of her surviving him and claiming his estate. It could not therefore be intended to affect his rights in an event very different from the one mentioned, viz. his surviving her.
    To support all his reasoning, Mr. Leigh cited Robinson’s Adtn’r. v. Brock, 1 H. & M. 213.
    The cases are entirely unlike in their circumstances, and in the general reasoning of the Judges.
    *In that case the property was to go to the survivor during life; and then to the heirs of the husband and wife, respectively, if the wife made no appointment. The case turned in part upon the technical meaning of the word “heirs,” which the Court seemed to think could not be applied to the husband, (see Judge Tucker’s opinion, p. 223, 224,) and partly upon the circumstance, that the husband, if he survived the wife, was, by the deed itself, to take a life estate; and here the maxim of Mr. Leigh of “Bxpressio unius,” &c. applied. See Judge Roane’s opinion, p. 227.
    In the case at Bar, both these important circumstances, upon which the case of Robinson’s Administrator v. Brock, essentially turned, are wanting.
    The Appellant’s construction, therefore, is neither supported by any good reason, nor by authority.
    There are several clauses in the deed, to shew that the Chancellor’s construction was the right one.
    1. The case, which has occurred, is entirely omitted, both in the recital and body of the deed, which could scarcely have happened accidentally.
    2. It is expressed, that if the wife die before the Appellee, the Trustees should hold; for whom? for her heirs, or her children? No: for her appointee, if she chooses to make one. This provision, for that very event, excludes any other, in the same event, and here Mr. Leigh’s maxim most completely applies.
    3. The children, who are said to be entitled by the stipulations of this deed, are not once named in it. The Court, but for extrinsic evidence, would not know there were any such; and, I contend, it must construe this deed without reference to that circumstance.
    4. The wife in making the appointment, is tied up to certain formalities.
    Eor whom and for what purpose? for the benefit of the children who are not named, and whom the Court cannot notice? or for the benefit, and at the instance of the husband? plainly the last. The case of Ross v. Ewer, 3 Atk. 156 and 163, is in point, and shews the motive on the part of the husband, generally, in making these restrictions.
    Suppose the wife had made an appointment, but not in the manner pointed out by the deed? The husband might certainly *have taken advantage of her failing to comply with a covenant, introduced by himself, and for his own security.
    This case is like those cases in England, where the wife has a separate estate, and fails to make an appointment.
    In such cases the wife may appoint, although there be no stipulation in the deed authorizing it.
    
      If she does not, the husband, as survivor, takes.
    
    So in the case of Fettiplace v. Gorges, 1 Vezey jr. 46, where the wife had a separate estate, free from the control, debts, &c. of the husband; the Chancellor said, if she had failed to make an appointment, the husband would take.
    These cases, and particularly the last, are decisive of the case at bar; because, in both, the wives had separate estates, free from the control, debts, &c. of the husbands; with a power of appointment in the one case, by deed, and in the other, by the principles of law. In both they failed to make the appointment, and the husbands took as administrators, or next of kin.
    So much upon general principles. To the objection that the decree has not given to Felicia A. C. Chilton a day after she comes of age to shew cause against it; I answer, the decree is only interlocutory.
    When it is made final, the Appellant Felicia will be given a day; and if it is to be considered as final in regard to her, this Court would now do what the Court of Chancery ought to have done, and only alter the decree in this particular.
    Stanard on the same side. Mr. Leigh’s view of this case is a novel one. The cases in England of settlements to the separate use of the wife are very numerous; yet, though from his known diligence, he has not failed to make researches, his acuteness has discovered no case in which the reasoning of the Bar or decision of the Court supported him in the ground he has taken. Indeed settlements to separate use afford a stronger argument in favour of his construction than this case. The case of Ross v. Ewer, 3 Atk. 156, is like this; yet no such idea seems to have occurred to Bar or Bench.
    But, novel as this view is, it comes from a source too respectable to be neglected. There is no disagreement between us as *to the principle of construction, that the intention should govern. Mr. Leigh contends that, that intention was to deprive the husband of all rights whatever in the property, in every event; because, the wife having renounced all right to his property, it was natural and reasonable that he should renounce all right to her’s. But was it not still more natural, if he did agree to renounce, that there should have been some direct and express stipulation to that effect? To what sources will he resort for materials for his argument? To vague, undefined and speculative opinions respecting natural justice? Will he look to property only as measure of the consideration, and require an equivalent in property to turn the balance? Does he look to the common and general habits of society for his authority? It is not usual for a young man, marrying a wealthy dowager, to renounce all rights in her property. Or does he regard the situation, in which the parties would have been placed had not the Deed been made? This would shew that it was neither natural nor reasonable. But how can the Court estimate the reasonableness of this contract, without inquiry into the extrinsic circumstances; the situation, wishes and objects of the parties? These can not be inquired into. If they could, the question is, what they have done, not what others may think it reasonable they should have done.
    478
    But “the estate was to be at her sole disposal, notwithstanding her coverture.” There would be something in this argument, if the power of disposal, existing in the wife, divested the husband, whether exercised, or not; to which idea all the authorities are opposed.
    “The stipulation on his part, ought to be co-extensive; and the right of disposal makes, her, quoad the property, a feme sole.” There is some confusion of ideas in this proposition. She is a feme sole in the exercise of this right, and in acts relating to it; not so as to succession or intestacy; as is proved by the cases of Ross v. Ewer, Fettiplace v. Gorges, Peacock v. Monk, and all the authorities.
    1 ‘There is one event, in which it is stipulated that the husband shall be entitled; and that is an argument that he is entitled in no other.” But how entitled? Not, as he claims, by virtue of the Deed, but by its destruction; not when the right of Mrs. Chilton terminates, but by divesting the title existing *in her. Does a stipulation, avoiding the Deed, shew what its construction is while existing?
    What then is this deed? its character, its object, and the person, whose rights it was intended to protect? A Deed excepting, from the general rights of the husband in the wife’s property, a power to the wife to dispose of it in a particular way. Its object was to reserve to each a power to dispose of their property, respectively, free from the claim of each; so that neither could claim of the other against the will of the original proprietor. For this purpose, and this only, was the renunciation of the wife introduced, because, without that, she could claim against his Will. The only parties, whose rights or powers it was intended to protect, are the husband and wife. Beyond the coverture, it looked to the interests of no one, but of those that might be selected by the express Will of the wife, or the express or implied Will of the husband. Who are the parties now claiming under it? Those, to whom there is not an allusion: they claim, too, by succession, upon the intestacy of a feme covert; a case never heard of. How would the case stand, if the wife had made a Will with one witness, giving the property to some one or other of the parties in this suit?
    Whatever may be the construction of the Deed, the Appellee must recover as administrator. In that character he would recover, though he were a third person. If the property should not be wanting for the purposes of administration, and the Appellants be entitled under the Deed, they can recover from him, as they could from another administrator.
    The case of Robinson’s adm’r. v. Brock, quoted as authority for this case, is not apposite, but differs in every essential feature. That was a case of the construction of a limitation in the Deed: here is no limitation to be construed. There it was in the Deed to be construed: here we are required to put it into the Deed by construction. There the question was, whether the popular or technical sense should be given to the limitation : the question here is, whether a limitation shall be incorporated in the Deed. There you were to interpret what the parties said: here you are called upon to supply their silence, and then interpret.
    "’'Wickham in reply. The parties to the settlement in this case evidently considered it a fair and equal match : neither of them looked to the projjerty of the other. Common sense shews their intention to have been that each was to retain his and her property. The husband’s chance of getting something as his wife’s administrator could not have been contemplated by him, as a motive to the marriage. Perfect reciprocity was evidently intended throughout the Deed.
    The most important clause is that which declares the Deed to have been made “to the intent that the property might not be at the disposal of, or subject to the control, debts, forfeitures or engagements of the said John Chilton.” This applies to every period; not to that of the coverture only; and clearly shews the intention of the parties to deprive him of all ownership, except the mere use during the coverture.
    Deeds, to declare uses, are construed with as much liberality as Wills. Judges indeed have lately said that, in all Deeds, the intention of the parlies is to be considered. At any rate, such is the rule concerning Deeds of personal estate; and the Deed here is of that character.
    No argument in favour of the husband can be derived from the circumstance that the appointment by the wife was to be by Deed or Will in writing. This provision was made to protect her from improper influence on the part of the husband, and also to protect him from unjust accusations.
    I consider Robinson’s adm’r. v. Brock a strong case in our favour. It has a direct bearing on this case. The principle decided is the same in substance with that, for which we contend. It is said that the words, “her heirs,” which were in the Deed in that case, are not in this Deed : but there are words equivalent, that the husband shall be excluded. The Judges did not rely on the words “her heirs,” but on the husband’s being excluded. There was a renunciation of his marital rights. So it is here.
    Mr. Stanard says, no dictum is to be found in the English Books supporting our construction of this Deed. I answer that no such settlement as the one now in question is to be found in those books. Neither Ross v. Ewer, nor Fettiplace v. Forges touch this case. There are many diversities beween the legal rules in England, in relation to husband and wife, and those *which prevail in this country. The different habits of the people in the two countries make the difference. The position in Fettiplace v. Gorges that the husband succeeds to the wife, not in consequence of his marital rights, but as next of kin, cannot be correct; for he is not next of kin to his wife, except in consequence of his marital rights.
    The express exclusion of the husband is an implied gift of the next of kin. Whether they take jure representalionis, or by purchase, is unimportant.
    It is true that the husband as administrator of his wife has a right to recover the property; but, after the payment of her debts, he is to pay it over to us; and he does not pretend there are any such debts. He has therefore no right in equity to take it from us on the mere possibility of debts.
    As to the formal defects in the proceedings; the Court certainly decreed prematurely, without a Replication to the answer of one of the joint defendants.
    
      
       Marriage Settlement — Power of Disposal — Failure to Dispose of Personalty — Rights of Husband. — A deed of marriage settlement may be so framed as to deprive the husband of his marital rights; but he will never be deprived ot them to a greater extent than the terms of the deed clearly require. And when his rights are only restrained by sucli deed during the life of the wife, at her death, he is entitled to all the personal estate embraced in the settlement, subject only to the payment of debts for which it was bound, if any such there are, funeral expenses, and charges of administration. Coatney v. Hopkins, 14 W. Va. 353, 354, citing principal case; Mitchell v. Moore, 16 Gratt. 274; and Matthews v-Woodson, 2 Rob. 601. To the same effect, the principal case is cited in Mitchell v. Moore, 16 Gratt. 280. In this case (Mitchell v. Moore), a deed of marriage settlement, settling the wife’s property, provided that the wife dying'inthe lifetime of her husband might dispose of the property by deed or will, but did not dispose of it upon her failure to execute the power. The wife died, the husband surviving, without having exercised the power of appointment conferred on her in the deed of settlement. It was held, on the authority of the principal case, that the husband was entitled to the personalty. Again, in Andes v. Roller, 98 Va. 621, 624, 37 S. E. Rep. 297. personal property was bequeathed to a married woman “to be her separate estate, free from the debts and control of her present or any future husband." It was held on the authority of the principal, case and Mitchell y. Moore, 16 Gratt. 280, that on her death intestate, the property passed to her husband as her sole distributee, subject to the payment of her debts and funeral expenses. To the same effect, the principal case is cited in Beard v. Beard, 22 W. Va. 137, 139.
      See further, monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
       Chancery Practice — Omission of Replication — Effect. —According to a well settled rule of law, where there is no replication to an answer in chancery, everything stated in the answer is admitted to be true. Martin v. Rellehan, 3 W. Va. 482, citing principal case and Kennedy v. Baylor, 1 Wash. 162. See further, monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. S7X.
    
    
      
       Interlocutory Decree — Reversal—No Day Reserved to Infant Defendant. — See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615; monographic note on “Infants” appended to Caper-ton v. Gregory, 11 Gratt. 505.
      The principal case was cited on this point in Ten-nent v. Pattons, 6 Leigh 208.
    
    
      
       Robinson’s administrator v. Brock, 1 Hen. and Munf. 213.
    
    
      
      
        2 Vez. sen’r. 191, Peacock v. Monk.
    
   March 11th, 1817.

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion, that, upon the true construction of the marriage agreement, among the exhibits, the right of John Chilton, the husband, to the personal estate of Felicia Chilton, his intended wife, embraced bj the said agreement, is, by the terms thereof, only restrained, during the coverture, to the use of the said property; and that, after the coverture, in the event, which has happened, of his' surviving her, the said Felicia, the same was only intended to be farther restrained, if, and in the event that, she should limit and appoint the same, pursuant to the power given by the said Deed.

The Court is farther of opinion, that these provisions are to be considered as exceptions to, and restrictions upon, the general right which he would otherwise have acquired, as an husband, in and to the property aforesaid, and are to be no farther extended, than as aforesaid, under the provisions of the said Deed; and that there are no sufficient expressions therein, importing that his said intended wife should be considered as a feme sole, farther than is inferrable from the limitations and powers aforesaid; nor that the husband agreed to renounce all his marital rights to the property in question.

Court is farther of opinion, that that clause of the said Deed, which states it to be the intent thereof, that the settled property may not be at the disposal of, or subject to the control, debts, forfeitures or engagements of the husband, is only to be taken in reference to, and as co-extensive with, the cases, provided as aforesaid; and not as restraining the power of the husband over the same in all cases whatsoever; a construction which not only fully satisfies the terms of the Deed, but is farther supported by that exception, which immediately follows, in favour of the representatives of the husband, in the event of his wife’s claiming an interest in his, her said husband’s estate. As to what is said of a renunciation, on his part, of her estate, being inferrable from a correlative renunciation, by her, of his estate; the fact is not so, nor would the inference follow if it were so. She does not renounce a claim on his estate absolutely but only agrees, that, if such a claim should be set up by her, she would forfeit the benefit of the agreement; and if, in fact, her stipulation had been more absolute, there are so many considerations mingling in contracts of this kind, other than those which' are merely pecuniary, that a corresponding inference would not arise, unless there were adequate words to import it.

On these grounds, and it not appearing that the deceased wife made any appointment, pursuant to the power given her by the Deed, the Court is of opinion, that the right of the husband is not barred, and that the Decree is not erroneous; an opinion which the Court would pronounce with reluctance, could it look beyond the agreement, and notice that evidence which states, that a stipulation corresponding with the pretensions of the Appellants was intended to have been inserted, by the parties, in the agreement, and was only omitted through hurry or mistake. The evidence on this point, now before us, is, however, irregular and inadmissible, and the Court considers itself, as concluded by the Agreement.

As to the alleged irregularities in bringing this cause to hearing, the Court thinks there is nothing in them. The Answer of Felicia A. C. Chilton by her guardian, as well as that of Thomas Chilton, that guardian, as a Trustee, is in the record, and is stated to have been filed among the papers: and although the Clerk undertakes to say, that they were not noticed *by the Court, we infer the contrary. The caption of the Decree names these, among the other defendants to the cause, and the Decree states that the cause was heard upon the Bill, Answers and Exhibits. The Court therefore understands that they were acted upon by the Court below; and the only effect, produced by the omission of a replication thereto, is, that all the facts stated therein are admitted. As to the objection that no day was given to the infant, to shew cause against the Decree after she came of age; it is a sufficient answer that the Decree is only interlocutory, and that this omission may be corrected hereafter.

Upon the whole, the Court is of opinion to affirm the Decree.  