
    Richmond.
    Gentry & als. v. Bailey.
    
      1850. January Term.
    
    (Absent Cabell, P.)
    A conveyance by a husband, by which he parts absolutely with au interest in personal property, though it is not to take effect until his death, and though he retains the power to sell and reinvest or account, and also the power to reappoint among specified objects, is valid to bar the wife of her distributable share therein.
    
      Robert Bailey, of New Kent county, died in December 1842. He seems to have possessed a considerable estate in lands, slaves, money and other personal property. He was twice married, and at his death, he left surviving him, four children by his first wife, and his second wife and one child by her.
    On the second of January 1840, Robert Bailey executed a deed of that date, to Joseph Gentry, in which he recited that he had received through his first wife a considerable property, consisting for the most part of slaves, of which those thereinafter mentioned were the survivors or issues. That it was but just and proper that the slaves received by his wife should go to her children after his decease, and it was his intention by the deed to provide for that purpose in such manner that the offspring of his first wife might receive, after his decease, the chief part of their mother’s property, and should likewise be entitled to claim an equal proportion of his own estate with his other children. He then proceeds to convey to Joseph Gentry, twenty-five slaves by name, upon trust, “that Robert Bailey shall, during his life, have the entire possession and control of the said slaves, and receive to his own use the profits thereof; and after his decease, that the said slaves and their issue shall be equally divided between the said children of his first wife, if they should all survive him; and if any of them should die before him, then to be equally divided between the survivors and the lawful issue of such as are dead ; the issue to take the share to which their parent would have been entitled if he or she had survived; but if any of the said children should survive the said Robert Bailey, and die under twenty-one, and without issue, their share to go to the survivors. And if the said Robert Bailey should survive all the said children and their issue, or they should all die under twenty-one, and without issue at the time of their death, then the said slaves to form a part of the general estate of the said Robert Bailey, and to go along with his other property as he shall by will direct, or if he should die intestate, according to the statute of distributions; unless he should otherwise dispose thereof in his life: Provided, however, that the said Robert Bailey shall have full power, by deed or will, to alter the distribution of the said slaves or their value, among his said four children and their issue, in any manner he shall think proper, by giving the whole or any part thereof, to any one or more of them, of the said children or their issue, and leaving any one or more of them with a smaller share than the others, or without any share at all. And provided also, that the said Robert Bailey shall have full power to sell any of the said slaves or the issue of the females; but in case of any such sale, his estate shall be accountable for the proceecds of the sale. If, however, he should sell any of the said slaves or their issue, and invest the purchase money in other slaves, or property of other kind, such slaves so purchased, or other property, shall, if he shall so choose to declare by will or .deed, or memorandum in writing, be held as a substitute for the slaves sold under this trust. Provided, also, that nothing herein contained or hereby granted, shall be considered as in the nature of an advancement to his said four children, or their issue, or any of them, or in anywise deprive them of their equal claim upon the balance of his estate with his other children by his present or any future marriage.”
    This deed was acknowledged before two justices in the City of Richmond, on the day it bears date, and was delivered by Robert Bailey to the trustee Gentry, on the 2d of May 1842. And after the death of Bailey, it was admitted to record in the clerk’s office of the County court of New Kent, on the 29th of December 1842, upon the certificate of the justices as to Robert Bailey, and upon the acknowledgment of Joseph Gentry.
    
    In February 1843, Frances Bailey, the widow of Robert Bailey deceased, filed her bill in the Circuit court of Charles City, against his administrator and surviving children, and the trustee Gentry, in which she stated that Robert Bailey died possessed of a tract of land in the county of New Kent, about forty-three slaves, ten or eleven thousand dollars in money and bonds, and other personal estate amounting to between two and three thousand dollars: that all his children were under the age of twenty-one years, and that the youngest of his four children by his first wife, had died since the death of his father. She charged that the deed of the 2d of January 1840, was obviously on its face a will in disguise, and could not therefore deprive her of her one third part of the slaves embraced therein. She charged that it was intended by Robert Bailey to operate as a will; that it was delivered to Joseph Gentry, with the distinct understanding that it was not to be put upon record until his death; and that he reserved to himself the right to demand its return, or cancellation or revocation in some other way. And in confirmation of this charge, she exhibited with her bill, a letter, which she alleged was found among her husband’s papers, purporting to be from James M. Wickham, Esq., who she said was the counsel who prepared the deed.
    The prayer of the bill was, that the deed aforesaid might be declared fraudulent and void; that she might have allotted to her, her dower and distributable share of the estate of her late husband; and for general relief.
    The trustee Gentry, and the children of the first marriage, by their guardian ad litem, answered, insisting upon the validity of the deed.
    The letter of Mr. Wickham is dated the 2d of January 1840, and is directed to “ Mr. Bailey.” He says : “The deed to Gentry, trustee, being in the nature of a will, you would wish to keep it private until your death. This is a good way of doing so. Let Mr. Gentry sign the deed after you, where the scroll is left for the purpose ; let him write on the deed, words to this effect: ‘Delivered to me this day by Robert Bailey,’ adding the day of the month and year: let the deed be then enclosed in an envelope and sealed up; let Gentry write his name on the envelope, and then it matters not who keeps the deed. The deed must at all events be signed by Mr. Gentry, and recorded after your death.” This letter was objected to as evidence by Gentry, by an endorsement upon his ansAver.
    
      The cause came on to be heard in November 1843, when the Court below held that the plaintiff was entitied to one equal third part of the slaves of her deceased husband Robert Bailey, including those named in the deed to Gentry; and commissioners were appointed to assign her dower in the real estate, and her one third of the slaves, to be held by her for her life. And the administrator was directed to settle his accounts before a commissioner of the Court. From this decree, Gentry and the cestuis que trust in the deed, applied to this Court for an appeal, which was allowed.
    
      Morson and Lyons, for the appellants.
    If the case of Colgin v. Lightfoot, 5 Munf. 42, is still law, then there can be no question of the validity of the deed in this case. Every fact existing in that case,, on which the deed was sustained, exists in this. Indeed, this is nearly a transcript of the deed' in that case. But there are, moreover, other facts in this case, which did not exist in that, and which go to sustain it. In this case the subject settled came from the mother of the grantees; but this was not the case in Lightfoot v. Colgin. Here, too, the grantor did not convey his whole estate: The bill shews that he had a large estate besides that conveyed; and here, too, the deed was delivered to the trustee by the grantor.
    But if the case is to be considered on principle, the deed is valid as a deed. A will is, in its own nature, ambulatory, and revocable at the pleasure of the testator, though there be no words in the will to authorize its revocation. And it confers no title or right of property until the death of the testator. 1 Jarman on Wills 11. By a deed the legal title passes at once ; and the grantor cannot alter or revoke it, unless the power is reserved in the deed.
    There is no doubt in this case that the deed was duly executed, delivered and recorded; and the whole question is, then, whether there is any provision in it which avoids it. It will he said that there is a power to sell the whole property, and. to direct how the property shall pass among the children. But though there is a power of sale, the proceeds of sale are disposed of by the deed, and there is no power of revocation. In Sugden on Powers 462-3, 15 Law Lib. 245-6, the distinction is taken between a power to appoint and a power to revoke. A power to appoint, though it revokes the old uses, must be accompanied by a new appointment. A power to revoke, is to cancel and destroy the deed; but a power to appoint, is entirely consistent with and depends upon the continued existence of the deed. Here the power to appoint, is limited to an appointment among the four children; and the law is well settled, that the appointment must be made among the persons designated.
    The case of The Attorney General v. Jones, 3 Price’s Exch. R. 408, may be relied on by the counsel on the other side. As to that case, we would refer to the comments upon it in Jarman on Wills 15. That writer refers to Tompson v. Browne, 8 Cond. Eng. Ch. R. 262, which is regarded as overruling The Attorney General v. Jones; and certainly it would not be followed even in England, except in a case exactly like it. Applying the test established in the case of Tompson v. Browne, to distinguish a deed from a will, to the deed in this case, and a multo fortiori, this is a deed. Here there is no power of revocation, which was the main ground of the decision in The Attorney General v. Jones; and which was held in Tompson v. Browne, not to be sufficient to change the character of the paper, and convert it into a will.
    The cases in which a paper in the form of a deed has been held to be a will, were cases in which the paper could not operate as a deed, or was not intended to operate so as to pass the title during the life of the grantor.
    
      A widow is only entitled to one third of the personal property of which the husband was possessed at his death; but she has no title to any which he disposed of in his lifetime. It is true, that at one time a husband could not dispose of the wife’s or children’s part by will; but at all times he has been authorized to dispose of his whole personal estate, in his lifetime. If he could give the whole, as the major includes the minor, he must have power to dispose of a part: If he can give the whole interest in property, he may give a remainder. This is the view taken by Judge Lomax, 2 Lomas on Ex’ors 204, referring to Colgin v. Lightfoot.
    
    
      Meredith and Scott, for the appellee.
    We do not deny the husband’s right to dispose of his personal estate from the wife, in any way he pleases, so that he at the same time denudes himself of all interest in the subject. The security of the wife is, that when he strips the wife, he strips himself. He is the guardian of her interests during the life of both; but that guardianship terminates on the death of the husband; and therefore, although he can dispose of his property during his life, away from his wife, he is not allowed to do it at the moment of his death.
    We concur with the counsel for the appellants, as to the grounds of distinction between a will and a deed, and that by a deed the title passes and vests in the grantee at once : And we enquire, what title or interest vested on the execution of this paper ? The grantor reserves the power to make any change in the disposition of the property among the four children. Then, what title passed to any one of the four ? He could deprive any one or more of all the property, and give it to the others, or one. Neither child, therefore, had any interest until the grantor’s death. Again, the grantor reserves the right to sell the slaves, to use the proceeds, and if he chooses to substitute the property purchased in the place of that mentioned in the paper. Then what title to the property passed ? The grantor having the right to sell and use the proceeds, the children could not maintain detinue for the slaves; and their only remedy would be against the executor or administrator for an account of the proceeds of sale. How then can it be said that this deed operated inter vivos.
    
    Again: This was a secret deed, not intended to be recorded, or its existence known, until the grantor’s death. Then, the grantor might have made a deed of trust upon the property to secure a debt. The creditor under the second deed would be preferred; and thus the deed might be revoked by the grantor. So, if the grantor had involved himself to the extent of his estate, subsequent to this deed, the slaves embraced in it would have been liable to his creditors: And thus the grantor might revoke the deed.
    The rule of law is, that if a father gives property to a child in the lifetime of the father, it is an advancement to the child, and must necessarily operate as such. But here the paper provides that it shall not be an advancement ; thus making the paper in fact a will.
    The case of Thorold v. Thorold, 1 Eng. Eccl. R. 1, shews that the delivery of the paper in this case did not operate any thing: and the features of that case, in which the paper was held not to be a deed, exist in this case.
    If this paper is not a deed, the question arises, what is it? We say it is a will in disguise, and was so intended. The letter of Mr. Wickham leaves no room for doubt on this point. This letter is excepted to by the trustee, by an endorsement on his answer, but no exception is endorsed on the paper. It was filed as an exhibit with the bill, and was found among the grantor’s papers.
    The true test of the character of the paper, is, whether title does, or does not, vest in the lifetime of the grantor. Jarman on Wills 11; Habbergham v. Vincent, 2 Ves. jr. R. 204, Buller's opinion; In the goods of Knight, 4 Eng. Eccl. R. 211; Attorney General v. Jones, 3 Price’s Exch. R. 408. This case is not overruled by the case of Tompson v. Browne, 8 Cond. Eng. Ch. R. 262. The cases are materially variant. We have already referred to some of the provisions of this paper, to shew that no title or interest vested in either or any of the children mentioned therein, until the death of the grantor. We may refer, in addition to the provision, that on the death of the children without issue, the property shall return to his estate.
    But it is said that the case of Lightfoot v. Colgin, 5 Munf. 42, is conclusive on this question. That was a recorded deed. It was a deed of gift, and that may be recorded on proof by two witnesses. 1 Rev. Code, ch. 111, § 51, p. 432. The deed then stood relieved of the suspicion which attends the paper in this case. It was beyond his reach. He could not destroy or annul it. In this case, Gentry was but the agent of the grantor, and the deed being merely voluntary, the grantor might have recalled it. There the slaves were divided between the grantees in the lifetime of the grantor. There also the deed was irrevocable on its face; not so here. If Lightfoot had died intestate, the gift would have been an advancement: Here the deed expressly forbids it. There Lightfoot reserved no right to change the bequest: here the grantor may. There every thing was done openly and in the light of day : here all is secret. There, there was no provision for the lapse of the gift: here there is. There Lightfoot was accountable to the trustee: here the executor is to account.
    Until the decision of the case of Colgin v. Lightfoot, the doctrine of the Court below was the doctrine of the country : Chancellor Wythe so decided it. And though Colgin v. Lightfoot was then an innovation, now it is to be used to carry the doctrine to an extent never dreamed of by the Judges who decided it: And this is to be done, though it was decided by a divided Court of three Judges to two: and Judge Roane, one of the majority, says that he decides the case, but does not establish a rule of law.
   Baldwin, J.

Our law of distributions gives to a widow one third at least of her husband’s personal estate of which he dies intestate, (after payment of debts and charges of administration,) to be enjoyed, in regard to the slaves, during her life, and as to the rest, in absolute property; and where he leaves a will, authorizes her to reject its provisions in relation to herself, and to take the distributive share in that event provided. 1 Rev. Code, ch. 104, § 26, 29, p. 381, 382. These enactments impliedly recognize the power of the husband, which he had, according to the modern common law, to alienate by sale or gift in his lifetime, the whole or any part of his personal estate, and thereby exclude his wife from any interest therein. But they depart from the English law in respect to the husband’s disposition by will of his goods and chattels, which by that law is effectual against his wife, who can claim no part of what is so bequeathed; and the effect of them is to secure to the wife her distributive share of whatever personal property belongs to the husband at the time of his death, whether he dies testate or intestate.

This right, by our law, on the part of the wife, I think it clear the husband cannot defeat by any contrivance for that purpose: He cannot, by any device, die testate or intestate in regard to his personal estate, in such wise as to bar her distributive share. Whatever may be the form of the transaction, if the substance of it be a testamentary disposition by the husband of his property, it cannot be effectual in relation to the wife. Lf this were otherwise, the statute might be rendered a dead letter at the volition of the husband.

It follows, that where a husband by a voluntary deed of gift of personals, in whatever form made, retains to himself the possession and enjoyment of the property during his life, and making the gift effectual only from the time death, reserves on his own part an absolute and complete power of revoking the same; such an instrument, so far as regards the distributive share of the wife, is in its nature testamentary only, and cannot affect the rights conferred upon her by law in contemplation of his dying either testate or intestate. In such a case, the dominion of the husband over the subject continues unlimited, and the question is not varied by the circumstance that the gift takes effect by his failing to exercise the power of revocation, for that is incidental to every testamentary disposition of property.

On the other hand, where the deed of gift of the husband is in its essence absolute and irrevocable, so as to separate a portion of his personal property, or its value, from the rest of his estate, and divest him of his dominion over it, the circumstance that the gift is to become effectual during his life, or after his death, is immaterial; for, as the law confers upon him the power to alienate his whole ownership of the property, so he is not restrained from giving away a part of that ownership, whether the gift is to take effect before his death, or from that period. Two circumstances must concur to render the gift testamentary in its nature ; one is, that it is not to be substantially effective until his death ; and the other is, that the husband does not divest himself of the capacity to recall it, and so resume to himself, or his estate, the ownership granted.

I deem it unnecessary to notice particularly the English authorities which have been cited in the argument, as to what instruments are to be regarded as testamentary or otherwise. They do not bear, as I conceive, materially upon the distributive rights of the wife under our law, which has an element unknown to the cominon or to the ecclesiastical law of England; the disability of the husband to defeat his wife’s distributive interest in his personal estate by testamentary provisions. There he may give away the whole of it from his wife by his last will and testament. And as to the decisions founded upon local customs there, they depend so much upon the peculiar principles of those customs, that they can throw but little light upon the construction of our statute, the spirit of which, it seems to me, is perfectly obvious, in discriminating between the alienations of the husband in his lifetime, and his revocable gifts of a testamentary nature.

Nor do I deem it at all material by what motive the husband was actuated in making the disposition of his property. Inasmuch as the law recognizes his perfect right to give away from his wife in his lifetime his whole personal estate, it is nowise relative to enquire by what sentiment, or prejudice, or passion, he was impelled to exercise that right. On the other hand, a design, on his part, to prevent the lawful interest of the wife from accruing, cannot be accomplished by any ways or means of dying testate in relation to the subject.

I consider the case before us, as ruled by the authority of Lightfoot's ex’ors &c. v. Colgin & wife, 5 Munf. 42, 555; the principle of which, I understand to be, that a wife has not such an interest in that portion of the personal estate of her husband, to which she may be entitled in the event of his dying intestate, or leaving a will which she may renounce, as that an absolute and irrevocable, though merely voluntary deed thereof, executed by him to his children by a former marriage, can be considered a fraud on her rights, or be set aside at her instance; and though the instrument be a deed of trust, by which he reserves to himself the possession and control of the property during his life. That case is, in its circumstances, very much like this, and the particulars in which they differ are unimportant. In both, the conveyances were to a trustee, and the gift was to take effect at the death of the husband, who reserved the possession, control and enjoyment of the property during his life ; in both, the deeds were irrevocable ; in both, the trustee was authorized to sell the property or a part of it, and was to account for the proceeds ; and in both, the design was to cut off the wife from her distributive share.

It is true, that by the deed in the present case, though the interests of the donees were joint and equal, power was reserved to the grantor to reapportion the same, and exclude one or more of them at his discretion, from participation with the rest, and even to confer the whole upon one. But still there was no authority to revoke the gift; it was, notwithstanding, effectual against the donor; he thereby divested himself, prospectively, of so much of his estate, in kind or value, without the power of recalling it.

It is also true, that in the present case (as in Lightfoot v. Colgin) the donor might have defeated the gift by wasting the property, and wasting his estate, or that the claims of creditors might have disappointed the expectations of the donees; but the distributive interest of the wife would have been subject to the same casualties if the deed had never been made; and that deed, however fraudulent in law or fact, as against creditors and purchasers, is not the less valid between parties and privies; and the wife, as regards the subject, was neither a creditor nor a purchaser.

It is moreover true, that the practical result of allowing such donations by the husband, to the prejudice of the wife, is to enable him to accomplish a design, formed in contemplation of approaching death, to cut off his wife from the distributive share of his estate, to which she might be entitled upon that event. But this is equally true of every voluntary gift by the husband in his lifetime; and no distinction can be founded upon the longer or shorter time intervening between the donor’s gift and his death. He may live for but a day, or for many years; and in either case, where the gift is irrevocable, he has parted from so much of his estate, and no change of circumstances or inclination can enable him to recall it.

The propriety of sustaining the deed in this case results, it seems to me, from a substantial distinction which the law has made between gifts and testaments; and we cannot depart from the plain and certain guide furnished by the authority and the principle of Lightfoot v. Colgin, without introducing into our jurisprudence various perplexing difficulties, and giving rise to numerous controversies.

The objections which have been urged against the validity of the gift in question, founded upon a supposed disregard of the solemnities required by law in relation to the attestation and authentication of the instrument, are unwarranted, it seems to me, by the true construction of our statute law upon the subject.

Our revised act concerning slaves, 1 Rev. Code, ch. 111, § 51, p. 432, provides that, “No gift or gifts of any slave or slaves shall be good or sufficient to pass any estate in such slave or slaves, to any person or persons whatsoever, unless the same be made by will duly proved and recorded, or by deed in writing, to be proved by two witnesses at the least, or acknowledged by the donor, and recorded according to law:” but that, “this section shall be construed to extend only to gifts of slaves, whereof the donors have, notwithstanding such gifts, remained in the possession, and not to gifts of such slaves as have at any time come into the actual possession of, and have remained with the donee, or some person claiming under such donee.”

If this statutory provision stood alone in our Code, the effect of it would, perhaps, be to avoid all gifts of slaves, of which the donor remained in possession, whether verbal or written, by absolute deed, or by limitations in trust, and not only as against creditors and purchasers, but as between the parties themselves and their privies.

But by our revised act concerning conveyances, 1 Rev. Code, ch. 99, § 4, p. 362, “ all deeds of trust and mortgages whatsoever, which shall be hereafter made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and lodged with the clerk to be recorded according to the directions of this act; but the same, as between the parties and their heirs, and as to all subsequent purchasers with notice thereof, or without valuable consideration, shall be valid and binding.”

These two revised statutes, in pari materia, and passed at the same session, must be construed together, and the effect is a modification of the one first by that last quoted. The former prevails as to all gifts of slaves of which the donor remains in possession, whether by parol or by absolute deed, and so as to avoid them, not only against creditors and purchasers, but as between the parties themselves, except those by deed proved and recorded according to the directions of that act. The latter governs all deeds of trust of slaves, not only such as are incumbrances for value, but such as are voluntary limitations in trust; and avoids them as against creditors and purchasers without notice, unless authenticated and registered as therein directed; but gives them full effect as between the parties themselves and their representatives. The apparent conflict between these two acts doubtless occurred from the introduction of them into the revisals, from the prior statutes, without attention to the propriety of making alterations in the language of that concerning slaves, so as to make it harmonize with that concerning conveyances ; but leaving them to be harmonized by juxtapositien and construction. This had already been done in regard to the revised act of 1792, concerning conveyances, and against frauds and perjuries, by this Court in Moore’s ex’or v. The Auditor, 3 Hen. & Munf. 234.

I think, therefore, that the deed of trust in question in this case would have been good as between the parties, if it had not been recorded at all; and of course its validity cannot be affected by its recordation after the death of the donor. It was certainly duly made and perfected by delivery.

My opinion is, that the decree of the Circuit court ought to be reversed, and the bill of the appellee dismissed.

Allen, J.

I think the decision in Lightfoot v. Colgin rules this case, and therefore concur in reversing the decree and dismissing the bill.

Brooke and Daniel, J’s, concurred in the order reversing the decree, and dismissing the bill.  