
    Crump and Others v. Dudley and Wife.
    [Wednesday, June 23, 1790.]
    Devise of Slaves^-Remainder — Case at Bar. — E. P. devises a slave to her daughter for life ; and, if she dies before my son J. P., then to be given to my son J. ; after which, she gave the remainder part of her estate to beequally divided among her four children, T., J., M. and S. It seems that the remainder in the slave passes.
    Husband and Wite — Fraud of Marital Rights. — The wife’s conveyance of her property before marriage, was supported against the husband.
    Elizabeth Pinchback, widow, purchased a slave named Sarah, and made her last will in writing, dated in 1750, in the words following, to wit: “And as touching such wordly goods or other estate wherewith it hath pleased the Lord to endow me within this life, I do give and dispose of in manner and form following, Imprimis, I do hereby give and bequeath to my loving son John Pinchback, all my tract or parcel of land in Goochland county, being *five hundred acres, and known by the name of the Bird. Imprimis, I give and bequeath to my loving daughter Sarah Pinchback one negro girl named Sarah (the slave in question) during her life, and in case she dies before my son John Pinchback, then the girl given to her to go to my son John. Imprimis, I give and bequeath all the remainder of my part of the estate to be equally divided between my four children, viz. Thomas, John, Mary and Sarah, but to be kept together till all the debts are paid and then divided.”
    The testatrix departed this life soon after the execution of her will, and John Pinch-back died in the lifetime of his sister Sarah, so that the contingent bequest of the remainder of the slave Sarah, to him, never took effect.
    Thomas Pinchback, the eldest son of the testatrix, departed this life, leaving two' daughters; of whom, One was the appellee, Anne, who, in her infancy, had resided with Sarah Crump, formerly Sarah Pinch-back.
    She continued unmarried until after she had attained the age of twenty-one years, when she formed an engagement with William Dudley, which continued about twelve months. On the 12th of February, 1773, the day after the license for the marriage had issued, and the day before it was solemnized, Anne Pinchback executed a bill of sale for her interest in the slave Sarah and her increase, for the consideration of thirty pounds, to Sarah Crump, who held a life-estate in the said slaves. This bill of sale was executed without the knowledge of William Dudley, but it did not appear that anyr caution had been given to the witness thereto to conceal it from him. The slaves had increased considerably, and a moiety of them was worth much more than thirty pounds. After the death of Sarah Crump, W. Dudley and Anne his wife, instituted their suit in the Court of Chancery for a moiety of the said slaves, alleging that the reversion did not pass by the residuarj' clause in the will of Elizabeth
    *Pinchback, but descended on her eldest son Thomas, and from him to his two daughters, of whom the said Anne is one, and that her deed was in derogation of the rights of marriage. The Court of Chancery decreed a moiet3r of the slaves to the complainants; from which decree the executors of Sarah Crump appealed to this Court.
    John Taylor, for the appellants,
    assigned three errors in the decree of the Court of Chancery.
    1. That, if the slave descended and the right of the appellees was unimpaired by the bill of sale of the 12th of February, 1773, still the appellants were entitled to a share of the appraised value.
    2. That Elizabeth Pinchback died testate as to her whole interest in the said slave: And,
    3. That the appellee Anne had sold her interest, whatever it was, to Sarah Crump, in 1773.
    As to the first: This is plain upon acts of 1705, c. 3, $ 10, [c. 23, 3 Stat. Earg. 334,] and 1727, c. 4, f 8, [c. 9, 4 Stat. Earg. 224:] which apply, as well to a partial, as to a total intestacy.
    As to the second: Although it be a governing principle in the construction of wills, that the intention shall be observed, yet, in determining upon that intention, the rules of law must be adhered to. [Bragshaw v. Spencer,] 2 Atk. 575. And it is a fixed rule of law, that a remainder or reversion will pass by a general devise of the residuary estate.
    Then, suppose the testatrix, when making her will, had been asked, whether the remainder in the slave Sarah was undis-posed of, and whether it was her intention that her residuary interest in the said slave should descend, as a reversion on her heir at law? Would she not have answered, that she had disposed of the whole of her estate, and died intestate as to nothing? *If so, to decree the slave - to the heir, will be to frustrate her intention.
    As to the third: Whatever may be the opinion of the Court on the other points, it is clear, that by the sale of 1773, the right of the appellees was completely extinguished.
    At the time of the sale, the appellee Anne had as perfect and complete a control over her property, as any other free person whatever. She was of full age, and possessed of every quality requisite to the validity of a contract. Although this particular contract might not be known to Mr. Dudley, yet he married, knowing that his wife had possessed the ability to dispose of her property, and was at full liberty to exercise it. This could not be unknown to him. Again, in order to support his present claim, it ought to appear, that this property was an inducement to the marriage. But, so far from shewing this, it is not even alleged in the bill.
    No fraud could be intended on the husband ; because, there is no secret or resulting trust for the benefit of the wife, or of any person she might appoint; but, it is a fair and bona fide-sale. If mere ignorance of contracts on the part of the intended husband, could set them aside, property would be absolutely bound and become inalienable, between a contract for marriage and its celebration; the inconvenience of which, in long engagements, is obvious.
    This is a compromise of a doubtful right. The seller and the purchaser each had claims to the thing contracted for. A compromise of this sort is supported by the law, [Stapilton v. Stapilton,] 1 Atk. 10. Suppose it .to be the opinion of the Court, that the right was in Sarah Crump before the contract, could the appellees be decreed to refund the 301. with interest? Certainly they could not: And, if they could not, neither ought the Court to interpose, if the right should be considered as having been in the appellees. The contract, being binding on one party, should be binding on both. „ •
    *It is not in proof either, that Sarah Crump knew of the marriage contract, and notice is not to be presumed. [Hine v. Dodd,] 2 Atk. 275. If she had no notice, then she could have committed no fraud on the rights of the intended husband.
    Marshall, for the appellees.
    The acts of Assembly, referred to by Mr. Taylor, apply only to cases of total intestacy. The words are, “when any person dies intestate, leaving several children,” &c. and not when any person shall die intestate with respect to anj' part of his property. The distinction between a total and partial intestacy, which the law seems to have made, is not entirely without reason. A total intestacy is seldom designed. Where it is accidental, the justice and humanity of the law gives to younger children a share of the appraised value of slaves; although its policy makes them de-scendible as real estate. But, where a will is made, it can seldom happen that much property will be omitted, unless the omission be designed. If, however, we suppose the provision of the law to extend to a partial intestacy, can the section be construed to extend to a possible reverter, as in this case? The slave is given in the will. If John had survived Sarah, the slave is given forever. What is to be inventoried and appraised? Is it a mere possibility? Is the heir at law to have a mere possibility inventoried and appraised, and to pajr a proportionate value of that appraisement to the younger children? It is plain, that the sections cited do not comprehend the case.
    The slave did not pass by the residuary clause.
    It is true, that in the construction of wills, the rules of law must be adhered to; but, it is not less true, that it has become a rule of law, to obey the plain intention of the testator. It is admitted, that general words may, in the residuary clause of a will, pass a reversion or remainder: but, it is contended, that such words will not pass such an interest, if there be accompanying ■words, shewing the intention of the testator to be, to limit the operation of the general *words to a particular property. An effect has been given to such words in a will, which they have not in deeds, to promote, and not to frustrate, the intent of the testator. In the present case, the will is obviously penned by a person not accustomed to legal forms. As one evidence of this, each sentence of the will commences with the word Imprimis. The writer, therefore, cannot be presumed to have known the legal construction of particular expressions, and to have intended that construction. It may well be doubted, in such a case, even had there been no restraining words in the residuary clause, whether a mere possibility could be designed to pass by it; and that, too, in a thing before mentioned, and given away in the same will. But here are restraining words.
    The property is to be kept together till debts are paid. It is to be then divided. How mix a mere possibility, such as this, with other visible and tangible estate? Hov? divide it? Why keep it for debts, when it could not be productive? To me it appears, obviously, to have been the intention of the testatrix, an intention evidenced by the descriptive words of the clause, to pass, by this - residuary clause, only such property as could be useful in the immediate payment of debts, and as would be susceptible of immediate partition.
    Marriage is to be considered as a civil contract. It is an union of fortunes, as well as of persons. It is of consequence, to the happiness and peace of'society, that it should be fair, and • without deception. A person possessed of a visible fortune, who contracts matrimony, impliedly contracts to unite that fortune, as well as her person, to her husband. To dispose of it secretly, is a palpable fraud; immoral in itself, and productive of consequences extensively injurious. It is a breach of the contract, and has been discountenanced by Courts. 1 Eq. Ca. Abr. 59. This case is stronger than those there cited, in as much as circumstances, not appearing' in those cases, attend the transaction. The deed was' executed the day before the ^marriage, and therefore would not probably be known to the intended husband, until the ceremony should be actually performed.
    It was executed to- a person whose situation probably gave her an influence over the mind of the seller, which no other person possessed. It was for an estate not in possession, but in expectancy; and, therefore, to be the more readily parted with, at an under value; and the consideration was so inadequate as scarcely to distinguish it from a gift.
    It cannot be necessary to shew, by testimony, that fortune was an inducement to the marriage. It results from the nature of the contract, that the inducements to it are various; and that fortune is not to be excluded from its share in producing it. Of course, it is not to be expected that other proof is to be adduced; since it is not to be expected that declarations, to that effect, could be made by a gentleman, who is endeavoring to obtain a lady’s affections. That fortune is not stated in the bill to have been an inducement, cannot affect the right; since the bill is drawn, not by the party, but by his counsel; and the existence of the inducement does not depend upon the statements of the bill, but grows, necessarily, out of the nature of the case.
    Nor is it material that the Court would not decree the appellees to refund, if the right should appear to have been against them, independent of the contract. All unfair contracts bind the party who has committed the fraud; and, yet, the injured person may be relieved against them.
    It is admitted that family disputes may be compromised, but the persons compromising them, ought to be in a situation to part with their property. An unequal compromise is as objectionable,-if not more-so, as a sale on a very inadequate consideration : of either, the intended husband, considering the time and circumstances of the case, ought to have been informed. It *would not have been withheld from him, had no fear existed of his preventing its completion.
    The situation of the parties and the complexion of the case, renders it impossible, that Sarah Crump could have been ignorant of the intended marriage; nor is it pretended, by her representatives, that she could have been ignorant of it.
    If, then, the acts directing shares of the appraised value of the slaves of intestates to be divided by the heir among the younger children, do not extend to the case; if the possibility of the reverter of the slave Sarah did not pass by the residuary clause of the will of Elizabeth Pinchback; and if the sale from Anne Pinchback to Sarah Crump was-void, as being a fraud upon the husband; then the appellees, in right of the said Anne, as one of the co-heiresses of the said Elizabeth Pinchback, are clearly entitled to a moiety of the slaves, according to the decree of the Chancellor; which ought to be affirmed.
    
      
       Husband and Wife — Fraud of Marital Rights. — On this question the principal case is cited in Land v. Jeffries, 5 Rand. 259; Gregory v. Winston, 23 Gratt. 128. See monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
   The Court

gave no opinion on the first or second point; but rather inclined to consider the reversion in the slave Sarah, with her increase, as passing by the residuary clause of the will of Elizabeth Pinchback.

In the third point, the Court was unanimous, that the sale from Anne Pinchback to Sarah Crump was valid; and, therefore, the decree of the Chancellor was reversed, and the bill of the appellees dismissed with costs.  