
    Richmond.
    Hume v. Hord & als.
    
    (Absent Brooke, J.)
    1. Upon a settlement by a husband on himself and wife, and to the survivor for life, she has a power of appointing to whom the land shall go in the event that she shall die without leaving issue at her death; so that such disposition is signified under her hand and seal in writing, or by last will and testament. The wife after-wards unites with her husband in a deed by which she relinquishes her right in the land for a valuable consideration, and dies without leaving issue: Held, That although she was not privily examined as to her execution of the deed, yet the same being under her hand and seal in writing, as prescribed in the deed vesting in her the power, she thereby destroyed her power of appointment.
    2. The wife having the absolute right to give the land to whom she pleased by the execution of the power in the manner aforesaid, it follows that she had the right for valuable consideration, and with the assent of all persons interested in the land, to destroy the power by the same means, and to permit it to pass as if the power had never existed.
    This was a suit in equity in the Circuit Court of Orange county, by Thomas Hord and others, claiming as legatees under the will of Francis Taliaferro, of Epsom, against Benjamin Hume and others. The facts, as they appear from the pleadings and proofs, are as follows:
    
      William Taliaferro was the owner of a tract of land in the county of Orange, called Newmgton; and his wife Elizabeth was the owner in her own right, of a tract called Potatoe Neck. William Taliaferro being very much embarrassed, he and his wife Elizabeth executed a mortgage of certain of his own land, and also of the land of his wife, to indemnify Edward Carter and Joseph Jones as his sureties and bail: and in consideration of his wife Elizabeth having joined in that conveyance, William Taliaferro and wife executed a deed bearing date the 3d day of May 1764, by which he conveyed to Joseph Jones the tract of land on which he lived, which was the tract called Neioington, in trust £t for the use of the said William Taliaferro and the said Elizabeth his wife, for and during the term of their natural lives, and the life of the longest liver of them; and from and after their decease, then to the use of such child or children of the said Elizabeth as she shall by her last will and testament direct and appoint; and on failure of such child or children, then to such other person or persons as the said Elizabeth Taliaferro shall incline to give the same, and to his, her and their heirs forever: so that such disposition be signified under her hand and seal in writing, or by her last will and testament ; and for want of such appointment and direction, to the right heirs of the said William Taliaferro forever.” This deed was duly recorded in the County Court of Orange.
    
    After the execution of this deed, William Taliaferro seems to have made some compromise with his creditors: and in 1771, a deed bearing date the 25th of April of that year, was executed by himself and his wife, of the first part, Joseph Jones, of the second part, and Francis and John Taliaferro, of the third part, in which, after referring to the deed of 1764, and the consideration on which it was founded, it was recited that William Taliaferro had compounded his debts with his creditors, who, upon his surrendering up his estate to be sold, had agreed to discharge him of all demands, and to allow to him and his wife Elizabeth, four hundred acres of land, of the tract where the houses stand, for their lives and the life of the longest liver of them; and also the liberty of selling the Potatoe Neck tract, for the purpose of purchasing slaves and other necessaries for the support of the said William and the said Elizabeth, for each of their lives; and from his death to the sole use of the said Elizabeth, or such person or persons as she should appoint; to be so settled that the principal could not be taken or made liable for his debts. The deed then proceeded to convey to Francis and John Taliaferro, the Polatoe Neck tract of land, upon trust, for the purposes stated in the recitals. And Joseph Jones, for himself and his heirs, released and made over to William Taliaferro and Elizabeth his wife, all right, title and claim that he might have to the said tract of land, called Polatoe Neck, in and by virtue of the deed of trust of the 3d of May 1764. And there were then covenants by Francis and John Taliaferro, that they would faithfully execute the trust. This deed was left with the clerk of the County Court of Orange, and was proved by two witnesses; but from some misapprehension, was not proved by the third witness, and therefore was not recorded.
    By deed bearing date the 26th day of August 1795, William Taliaferro, on the consideration expressed in the deed, of one hundred' and fifty-one pounds, conveyed to Francis Taliaferro a tract of four hundred acres of land, being the tract on which he lived, and the same referred to in the deed of 1771, as reserved to William Taliaferro and his wife, for their lives and the life of the survivor.
    Previous to the 15th of October 1801, William Taliaferro died, and his widow married Benjamin Hume; and by a deed of that date, Joseph Jones and Francis Taliaferro, reciting that by virtue of a deed of trust executed to them and John Taliaferro, who was deceased at the date of the deed, by William Taliaferro and wife, for the purpose of selling sundry lands of the said Elizabeth and William, for the payment of his debts, and for other purposes therein mentioned, the said Joseph Jones and Francis and John Taliaferro did, among other lands, sell at public auction, according to the powers vested in them by the said deed of trust, a certain tract of land in the county of Orange, called Newington, on which William Taliaferro and his wife lived at the time of the sale, and Hume and wife then lived, containing four hundred acres, in which the said Elizabeth Hume had an estate for her life; and which tract of land was purchased by Francis Taliaferro; they conveyed the said land to Lawrence Battaile, upon trust that he should convey it to Francis Taliaferro, whenever he should be requested to do so by the said Francis. In 1815 Francis Taliaferro died, having by his will directed his executors to sell this land at the death of Mrs. Hume, and divide the proceeds among the daughters of his three daughters; and it is under this bequest that the plaintiffs below claim.
    In March 1805, Benjamin Hume and his wife Elizabeth, conveyed the tract of land of four hundred acres, called Newington, to John F. Conway; and in July of the same year, Conway conveyed it to Hume.
    
    
      Mrs. Hume died in 1832, leaving no children surviving her; and then the legatees under Francis Taliaferro's will, brought this suit against Hume, Lawrence Battaile, and the administrator with the will annexed of Francis Taliaferro, to recover the land from Hume, and for a conveyance by Battaile to the administrator, and a sale and distribution of the proceeds according to the will of their testator.
    The cause came on to be heard in October 1840, when the Court made a decree, directing a conveyance by Battaile, and a surrender of the land by Hume to the administrator, with the will annexed of Francis Taliaferro, and a sale thereof, and distribution by the administrator; and also directed an account of the rents and profits from the death of Mrs. Hume. From this decree Benjamin Hume applied to this Court for an appeal, which was allowed.
    
      Patton and Green, for the appellant.
    
      Stanard & Bouldin, and Griswold & Claiborne, for the appellees.
   Cabell, P.

delivered the opinion of the Court.

The Court is of opinion that the effect of the indenture made the 25th day of April in the year 1771, between William Taliaferro and Elizabeth his wife of the first part, Joseph Jones of the second part, and Francis Taliaferro and John Taliaferro of the third part, was to destroy the power of appointment given to the said Elizabeth Taliaferro, in relation to the tract of land in controversy, by the deed of trust of the 23d day of May 1764, executed by the said William Taliaferro and Elizabeth his wife, to Joseph Jones.

The Court is further of opinion, that the indenture aforesaid, of the 25th of April 1771, had the effect to restore to the said William Taliaferro, all the rights of property which he had to the land in controversy, prior to the execution of the deed of trust, of the 23d day of May 1764, except so far as those rights might be affected by the life interest in the land granted to the said Elizabeth Taliaferro.

The efficacy of the indenture of the 25th day of April 1771, is not impaired by the fact, that Mrs. Taliaferro had an interest in the power of appointment, and that she was not privily examined as to her free and voluntary execution of that deed. It is the right of the person creating a power of appointment, to prescribe the manner of its execution. And in this case, it is expressly declared that it may be exercised by any instrument under the hand and seal, in writing, of Mrs. Taliaferro. Having the absolute right to give the land to whom she pleased, by the execution of the power, in the manner aforesaid, it follows that she had the right, for valuable consideration, and with the assent of all persons interested in the lands, to destroy the power by the same means, and to permit the land to pass as if the power had never existed; and the Court is of opinion, as before declared, that that is the effect of the arrangement made by the indenture of the 25th of April 1771.

The Court is of opinion, that there is no validity in the objection that Joseph Jones, in that part of the indenture of the 25th of April 1771, in which he releases all right, title and claim to the land, calls it the Poialoe Neck tract; for he refers to the deed of trust of the 23d of May 1764, to shew what was the right, title and claim which he intended to release, and that deed shews, beyond the possibility of doubt, that it was the right, title and claim which he had acquired by that deed of trust, in the Newington tract, (the land in controversy,) and not the Potatoe Neck tract. And deeds are to be construed according to the manifest intention of the parties, as collected from the whole instrument, and not from particular words and phrases only.

The Court is of opinion to affirm the decree.

Baldwin, J. dissented.  