
    *Waller v. Armistead’s Adm’rs.
    February, 1830.
    (Absent Coalter and G-bebn, J.)
    Husband and Wife—Antenuptial Conveyance—Fraud on Husband.—Deeds executed by a woman immediately before her marriage, giving away her property. without knowledge oi her intended husband, are fraudulent as to the husband.
    Guardian and Ward—Release Deed Executed by Ward Shortly after Attaining Majority—Validity.—Deeds of gift, or of release and acquittance, made by ward to guardian or person who has borne part of guardian, shortly after ward’s attainment to full age, but before delivering of ward’s estate and without any settlement of accounts, are void on the principle of public policy, without proof of actual fraud: much more, if circumstances of transaction evince actual fraud.
    Same—Same—Same.—No just distinction, in this respect, between deeds of gift, and deeds of release and acquittance, by ward to guardian: both equally condemned by equity.
    Same—Same—Lapse of Time—Effect.—Female ward makes deed of general release and acquittance to . guardian, without any settlement of, accounts, and deed of gift to guardian’s infant son, without having its contents and effect explained to her; and marries the same day; husband lives for more than 20 years, and then dies: Held, the lapse of time during the coverture does not affect the right of the wife to impeach the deeds in equity.
    Huey B. Armistead, daughter of John Armistead who died in 1780, and of Mary his wife, who survived him and died in 1792, became entitled, on the death of her mother, to sundry slaves and to an interest in a tract of land in New Kent. She was then an infant, yet, as it appeared, she never had any guardian legally and regularly appointed; but her brother Robert B. Armistead, who was the administrator de bonis non of their father and the administrator of their mother, acted for her in the place of a guardian. He took upon himself the care of supporting her during her infancy, and possessed himself of the slaves belonging to her, employing them either on his own farm, or hiring them out and receiving the hires. This state of things continued till December 24th 1801, when she married Aylet Waller. Robert B. Armis-tead had made no settlement of the accounts of his guardianship, or agency for his sister; and he still retained in his own hands the estate she was entitled to, though she had then attained to full age. But, on the very *day of her marriage* a few minutes before the ceremony, he stated to her in the absence and without the knowledge of her intended husband, that the advances he had made for her would, on a fair settlement, be about equal to the amount of the hires of her slaves; and without exhibiting any account, or stating any particulars, he proposed that she should give him an acquittance of the hires, and tendered a writing which he had previously prepared for the purpose, for her signature. She executed the instrument: it was a deed, dated December 24th 1801, whereby, after reciting that the parties had mutually agreed to settle all accounts, and to release, each to the other, all demands for money on any and every account whatsoever, the sister acquitted the1 brother of all demands, and acknowledged full satisfaction of whatever he might owe her. And at the same time, she executed another deed, bearing the same date, which had also been prepared by her brother, but which was not explained to her, nor did it appear that she had any knowledge of its contents or object: this purported to be a deed of gift, in consideration of natural love and affection, to her nephew John D. Armistead’, an infant son of Robert B. Armistead, of all her right, title, interest, and proportion, of the proceeds of the sale of the tract of land in New Kent, on which Robert B. Armistead then lived, and which had been previously sold under a decree >of the county court of New Kent, to a proportion whereof she was entitled as one of the children of John and Mary Armistead.
    Robert B. Armistead died in the year 1811, without having ever settled his accounts of his administration of his father’s or mother’s estates. And, during his lifetime, Aylet Waller and his wife made no effort to set aside the deed of acquittance, or the deed of gift, of the 24th December 1801, or to compel him to settle his accounts of administration of the estates of his father and mother, and to distribute the surplus. But, in March 1813, they brought two suits, in the superiour court of chancery of Richmond : the one against George Semple and William Armistead, administrators *of Robert B. Armistead, of which the object was to set aside the deed of acquittance of the 24th December 1801, as a fraud on the marriage, and have an account of the profits of the slaves while in R. B. Armistead’s hands: the other against the same administrators and several other persons, to set aside the deed of gift to John D. Armistead of the 24th December 1801, and to compel a settlement and distribution of the estates of John and Mary Armistead, of which Robert B. Arm-istead had been the administrator. In these two causes, the facts in regard to the execution of the two deeds of the 24th December 1801, appeared as above stated; indeed, the most material of them were admitted by William Armistead, one of the administrators of Robert B. Armistead deceased.
    The two causes were heard together: and chancellor Taylor declared the two deeds in question valid and binding as between the parties and all persons claiming under them, and therefore dismissed the bill in the first suit: in the other case, he directed accounts to be taken of R. B. Armistead’s administration of his father and mother John and Mary Armistead’s estates, and other proper accounts.
    Waller and wife appealed to this court, for the purpose of having the principle settled as to the validity of the deeds. Pending the appeal here, Waller died, his wife surviving him; and, as the suit was brought in her name and in her right, it survived to her, and the appeal was prosecuted in her name until she also died; after which it was revived in the name of her representative.
    The cause was argued (very concisely) by Stanard for the appellant: no counsel appeared for the appellees.
    
      
      Husband and Wife—Antenuptial Conveyance— Fraud on Husband—Where the disposition of her property by an intended wife is made in pursuance of an agreement entered into before the marriage was definitely contemplated, all presumption of fraud is negatived. Gregory v. Winston, 23 Gratt. 126, citing principal case.
      See further, on this subject, monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
      Guardian and Ward—Release Deed Executed by Ward Shortly after Attaining Majority—Validity.—To the point that the law, on a principle of public policy, vacates, without proof of any actual fraud whatever, all conveyances by a ward to his guardian shortly after attaining his majority, the principal case is cited in Pye v. Jenkins, 20 Fed. Cas. 98.
      See further, on this subject, monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
   CABEJBD, J.,

delivered the opinion of the court. The only question is as to the validity of the deeds. It may be well to premise that although Robert B. Armistead was not appointed the guardian of his sister, in the forms prescribed by law, yet, under the circumstances of this case, a court of equity must regard and treat him as if he had been her legal '^guardian; and as the deed of gift was procured by him, for the benefit of his infant son, that deed will be regarded as if it had been executed directly to himself.

As the rights of Aylet Waller, whatever they may have been, were lost by his death in the lifetime of his wife, it is not necessary for the court to decide what his rights would be, in case he were still alive. We deem it proper, however, to observe, that deeds executed by a woman just before her marriage, and giving away her property without the knowledge of her intended husband, are fraudulent and void as to the husband.

As to the rights of Mrs. Waller: The case of Hatch v. Hatch, 9 Ves. 292, (to whmh many others might be added) is extremely strong to shew the readiness and determination with which the courts will protect the interest of wards, by setting aside conveyances made by them in favour of their guardians, shortly after they attain their age, or at or before the time of settling the accounts and delivering up the estate. So many undue advantages may be taken in such cases, by means of the influence which may, in various ways, be exercised by the guardian, that the law, on a principle of public policy, vacates all such conveyances, without any proof of actual fraud whatever. On this ground, the court is clearly of opinion, that the deed of gift executed by Miss Armistead, is null and void. But there are particular circumstances which make it still more apparent. The time selected for the execution of the deed, a few minutes only before the marriage; the absence of all proof1 of any previous intention of Miss Armistead to execute any such deed; the absence of proof that she had, at the time it was executed, any knowledge of its character or object; added to the care with which it was concealed from her friends, and particularly from her intended husband, who was then in the house; combine to stamp it with the foulest fraud.

Then, as to the deed of acquittance and discharge, executed by Miss Armistead to her brother. Chancellor Kent, in Kirby v. Taylor, 6 Johns. Ch. Rep. 242, draws a distinction ^between a deed giving a gratuity or bounty to a guardian in remuneration of an antecedent duty, and a deed of release, acquittance or discharge. He admits that the policy of the law utterly reprobates the former, as being absolutely null and void; but he contends that a simple release is prima facie good, and consequently (as we understand him) will not be set aside, unless it be shewn to be unfairly obtained. We cannot perceive the justness of this distinction. A simple release, by which the guardian is exonerated from accounting, and consequently from paying a just balance which may be in his hands, is as much a gratuity as a direct gift by formal conveyance. It may be as gainful to the guardian, and as disadvantageous to the ward, as a direct gift would be. And if such a practice were tolerated, it would lead to greater mischiefs than would result from sanctioning direct gifts or gratuities; for wards might be much more easily induced to grant releases for unascertained balances of unsettled accounts, than to make direct gifts of what they have in possession, and know to be their own. Besides, if we say that every acquittance executed by a ward is prima facie good, we exempt the guardian from the obligation of shewing that it was given in consequence of a just settlement, or that if a settlement had been made, nothing would have been due to the ward; and we throw upon the ward the burthen of proving that the settlement (if one was made) was not fair, or that if a fair one were made, the guardian would be brought in debt. This shifting the burthen of proof, in such cases, is intirely contrary to our ideas of propriety. We think therefore that an acquittance or release given shortly after a ward comes of age, or before or at the .time of giving up the estate, so far as it may be sought to be used either as evidence of a fair settlement or a discharge from the obligation of making such a settlement, stands on the same footing as a direct gift or gratuity. But in addition to the great principle of public policy, the acquittance, in this case, stands reprobated by all the circumstances of fraud, which we have already mentioned as attaching to the deed of gift.

*The objection as to the length of time that was permitted to elapse before the institution of the suit, cannot be made to apply to Mrs. Waller; because she was under the legal disability of cover-ture from the date of the deeds to the time when the suit was brought. It is not material, and therefore we give no opinion as to the effect of such an objection, if it had been made against Waller. We shall only observe, that in the case of Hatch v. Hatch, before referred to, relief • was given after a much longer time, and even to a husband who had participated in the fraud.

Decree reversed.  