
    
      F. L. Roux, trustee, v. T. B. Chaplin et al. T. B. Chaplin et al. v. F. L. Roux et al. R. L. Baker v. T. B. Chaplin. F. L. Roux v. T. B. Chaplin et al.
    
    In contemplation of marriage, the intended wife first conveyed her whole estate to trustees, in trust, to permit the intended husband to receive the profits of the same, for the joint use “ of himself and wife during their joint lives and by a second clause in the deed of settlement, reserved to herself the power to dispose of any portion of the said premises, in any manner whatsoever, either by deed, from time to time, during her life, or by her last will and testament. Upon a bill being filed to restrain the wife from appointing the whole estate to other uses, (under this power,) the Court lceld the first clause of the deed of settlement to be a grant of a life estate — and the second as giving the wife power to make a/mj disposition of the property, subject to the joint estate for-life, and to take effect after its termination; thus constituting a vested remain-, der, expectant on that termination. .
    A vested remainder may be transferred by deed conveying the present legal title, though not the present right of possession.
    The power of appointment, whether by deed or will, most commonly contemplates a disposition to take effect in futwro.
    
    Where one became a party to a supplementary bill, which was a continuation of a suit originally instituted for his benefit, and' adopted and insisted on all the grounds originally taken, the Court held him liable for the costs of the whole suit.
    
      Before Johnston, Ch. at Gillisonville, February, 1846.
    Johnston, Ch. These cases were heard together; and though a very long statement is necessary to arrive at them, the points to be decided are very few, and not difficult.
    On the 8th day of June, 1843, in contemplation of a marriage between Isabella C. Field, a wealthy widow, about fifty years of age, and Robert L. Baker, who was much younger, but bankrupt, which marriage shortly afterwards took place, the said Isabella, by a deed to which the said Robert L. Baker was a party, conveyed .to certain trustees therein named, a plantation on Combahee river, in Colleton District, called the Point or Laurel Bower, together with two parcels of land commonly used therewith, and known as Fire Brass and Buzzard’s Island; also, a plantation on Chyhaw river, in Colleton District, called Walnut Hill; a plantation on Ashepoo river, Colleton District, called Dunham; a plantation in Saint Helena, Beaufort District, called River-side, (formerly Jenkin’s); and three portions of land in Greenville District, known as Chesnut Hill; together with all her negro slaves, amounting to about two hundred; the stock, utensils, and implements on the said plantations, and the furniture in the different mansion houses; and whatever other property, real or personal, might belong to the said Isabella. - And she also assigned to said trustees all her choses in action of whatever description. Which conveyance and assignment were declared by said deed to be in trust, after the marriage, to permit said Baker to receive the rents, income and profits, for the joint maintenance of himself and his said wife, during their joint lives, but not subject to his debts; and in case any of his creditors should attempt to charge the income and profits with any of his debts, then the said income and profits to be received by the wife to her own separate use and behoof.
    
      Then follow certain clauses, which it is important to bear In mind, viz:
    “ And it is hereby expressly declared, that in case the said Isabella C. Field shall be minded to dispose of any portion of the said premises, in any manner whatever, then the said trustees shall hold, convey, order and assign the same to and for such person or persons, upon such uses, and subject to such limitations and conditions, as the said Isabella C. Field shall, from time to time, in her lifetime, by any deed or other instrument in writing, executed by her in the presence of two or more witnesses, or by her last will or testament, duly executed, order, direct, limit,; or appoint. And in default of such order, direction, or limitation, then in case the said Isabella C. Field shall survive the said Robert L. Baker, in trust to re-convey all and singular the said premises to her, the said Isabella C. Field, her executors,” &c., “ freed and discharged from all further trusts. And in case the said Robert L. Baker shall survive the said Isabella C. Field, and in default of said order, limitation, or appointment by the said Isabella C. Field, either by deed or will, as aforesaid, then, as to all and singular the said property of every kind herein mentioned and intended to be conveyed, and not otherwise disposed of by the said Isabella C. Field, by deed or will, as aforesaid, in trust, that the trustees, the survivor of them,” <fcc., “ shall, immediately upon the decease of the said Isabella C. Field, cause the trust property, as it shall have stood at the date of her decease, to be valued, and one clear third thereof in value, after paying all debts of the trust estate, to be delivered to the said Robert L. Baker, to be used and enjoyed by him during the term of his natural life, and the rents, income and profits thereof to be applied to his own use, and to be disposed of at his own free will and pleasure, during his said natural life; the capital, however, to be in no wise subject to his debts, contracts, or engagements ; and from and after the decease of the said Robert L. Baker, then in trust, to hold and apply the said capital to and for the same estates, and upon the same trusts, as are hereinafter declared as to the remaining two-thirds of the said trust property.” And as to the remaining two-thirds of the said trust property, in case no disposition thereof be made as aforesaid, by the said Isabella C. Field, in trust to divide and apportion the same equally between the children of Thomas Benjamin Chaplin and Saxby Chaplin, who may be living at the time of the decease of the said Isabella O. Field, peí sierpes, and so that the children of the said Thomas B. and Saxby, respectively, shall take among them one-half of the said two-thirds. And if there be but one grand child of the said Isabella C. Field living at the time of her decease, or the child or children of only one of them, the said Thomas B. and Saxby, then in trust for such grand child or grand children of her, the said. Isabella C. Field, absolutely and forever.” Then the said Baker covenanted with the trustees for executing all necessary instruments for conveying and assigning to said trustees, all property, rights and claims which might thereafter descend or come to the said Isabella C. Field, upon similar trusts. “And further, that he, the said Robert L. Baker, shall permit and suffer the said Isabella C. Field at all times to make and execute any deed, will, or disposition, as is herein before mentioned; and shall and will carry into execution and effect the same, to all intents and purposes.”
    Then follows a power to the said Isabella C. and. Robert L. to substitute other trustees, &c.
    The settlement was duly registered the 17th of June, 1843, nine days after its execution.
    On the of September, 1844, the said Robert L. Baker and Isabella C. Field substitued Francis L. Roux and Daniel Jenkins in place of the trustees originally named in the marriage settlement.
    Owing to disagreements between Baker and wife, the origin and nature of which were not explained by evidence, and appear to be immaterial in these accounts, Mrs. Baker withdrew from the society of her husband, and went to reside first by herself and afterwards with Thomas B. Chaplin, one of her two children by a former marriage, and executed certain deeds, which will be more particularly noticed hereafter, by which she appointed portions of the settled property to her sons, Thomas B. and Saxby Chaplin, the latter of whom is a minor. Thus originated this series of suits.
    On the 7th of August, 1845, the bill in the first of these cases was filed by Roux, one of the trustees, against Mrs. Baker, her two sons, Thomas and Saxby Chaplin, and the co-trustee, Jenkins. As this bill opens the field of controversy, it may be useful to note its contents with some particularity. It will be noted on examining the record that Baker was not made a party defendant, although it affects to be a bill of interpleader. Neither was the usual oath in the case of bills of interpleader taken by Roux, the plaintiff. Throughout the bill he manifests a disposition to maintain the rights of Baker, instead of calling Baker before the Court to speak for himself; and there is a considerable want of that impartiality between the parties which becomes him who brings a bill of inter-pleader before the Court.
    His bill states that on the 8th of June, 1843, Mrs. Field, a widow of about 54 years of age, owning several plantations and several hundred negroes, and other property, became engaged to Baker, a gentleman much younger than herself, who, by misfortune in business, had become incumbered with debts beyond his ability to pay.
    That the estate of Mrs. Field consisted of lands and negroes, requiring her intended husband should devote his time to their management. That, in this state of things, a settlement of the estates became an act of prudence and justice, and was suggested by Baker, who called on a gentleman of the law who had been his former adviser, and requested him to wait on Mrs. Field and take her instructions; she having already agreed that her intended husband, by tire proposed settlement, should receive the income of the estate for their mutual support dining their joint lives, but not subject to his former debts; and, if he survived her, he was to receive the income oí one-third of the estate, .certainly, and in case she so desired, so much of the other two-thirds as she should appoint ; so she explained her intentions ; and so the said Baker believed the settlement was drawn.
    That Mrs. Field had two sons by a former marriage, who were men, and provided for, and living on their own estates ; and (as the plaintiff had been informed,) they and their advis ■ ers contrived to get Mrs. Field to insert a clause in her marriage settlement, after having provided that her intended husband should receive the whole income during their joint lives, in these words. [Here the clause which I have extracted at length is inserted.]
    That the residue of the settlement were in the form understood and agreed upon.
    That the said Baker contends that when he executed the settlement, on the eve of the nuptial ceremony, he omitted to scrutinize the clause above recited; and, presuming that his intended wife had acted in good faith, he signed it. “ They were married, and it was all well for a time,” until he discovered that his wife was involved in debt for her sons and on her own account, and that she was devoting the property so settled to the payment of such debts. This produced some remonstrance; and Mrs. Baker, (as her husband contends,) without his consent, and for no sufficient cause, left his dwelling on one of the settled plantations, and lived by herself, under the influence and persuasions of her sons, who used every means to excite her against her husband.
    
      The plaintiff states, that on the withdrawal or refusal to serve,, -of one of the trustees named in the settlement, he (the plaintiff ) was duly constituted trustee, at the -suggestion and request of Baker, and took upon himself the execution of the ■trusts of the settlement, in conjunction with Daniel Jenkins, who w.as made trustee at the instance and on behalf of Mrs. Baker; and that in undertaking this office, he (the plaintiff) did not intend or expect to incur any liabilities, or encounter any difficulties K beyond the quiet and harmonious discharge •of a gratuitous act of friendship to the husband, Mr. Baker,” .and accordingly permitted the husband and wife to hold quiet possession of the trust [property] and manage the same for •their mutual support, as he presumed was the intention of all parties. But, contrary to his expectations, he has understood that Mrs. Baker, under some vague- promises from her sons, and, (as the husband avers,) from erroneous statements to her in relation to her husband, has been induced to desert him, and withdraw herself from his protection, his bed and board, notwithstanding his strong remonstrances and earnest solicitations to return and share with him the proceeds of the settled estate.
    That this fact, in itself, has very much embarrassed the plaintiff in the discharge of his duties as trustee — as both husband and wife demanded the income. But, to render the difficulties insurmountable without the aid of the Court, he has lately been informed by Thomas B. Chaplin, one ox Mrs. Baker’s sons, that his mother has conveyed the greater part of the lands and negroes contained in the marriage settlement to her two sons, Thomas B. and Saxby Chaplin, with remainder to their children, by a deed of which he exhibits a •copy, B. (The copy exhibited is dated the 16th of April, 1845.)
    •That plaintiff received from the said Thomas B. Chaplin, ;a notice, of which he exhibits a copy, C. (The copy exhibited is dated the 16th of June, 184-) requiring him to account for the rents and profits of the settled estate to him; whereas he, (the plaintiff, Roux,) had heretofore placed the property in the hands of Baker, to receive the income, for the joint use of .himself and his wife, and he (Baker) denies the validity and legality of the deeds so executed by his wife, and demands to hold the said lands and negroes by virtue of the settlement, and thus leaves the plaintiff in danger of litigation and loss between the contending parties, and also of holding the trust appointment, not for the purposes for which he consented to be substituted, to wit: to serve the interests of Baker and his wife, but for persoixs who are strangers to him, and in whose affairs he has no interest.
    
      That Baker, who is now in possession of the plantations and negroes, and has proceeded to plant a crop, and incur the expenses of procuring provisions, clothing, and the services of proper overseers, refuses to yield possession to Thomas B. Chaplin and Saxby Chaplin, and claims the right peaceably to occupy, and take the rents, issues and profits, for the joint use of himself and his wife, whom he avers he has always treated kindly and affectionately, and repeatedly invited to return and live with him in harmony, but who, he supposes, has been induced by the interested statements and suggestions of her sons to withdraw herself from her husband, whom she professed to regard with the utmost affection. That he (Baker) denies that, under the laws of this State, a wife can legally withdraw from the advice and protection of her husband, and execute deeds, especially such improvident and unconscionable ones; and that he avers and maintains that by the true interpretation of the marriage settlement, the first part of the deed must prevail; and that the settlement of the rents, income and profits of the property, during the joint lives of the married couple, is irrevokably fixed, and cannot be defeated by a subsequent power of appointment, conflicting with the chief object of the settlement, but must be taken to be subservient to that chief object, for which the obligations, responsibilities and restrictions of marriage formed a full and valuable consideration, — so that, in fact, any appointment, to be valid, must take effect only after the chief purpose of the settlement is accomplished.
    That, he also contends, there is nothing on the face of the deeds of conveyance to exonerate him from any of the liabilities of a husband ; and the deed on its face is unequal, without consideration, the result of undue influence, and ought to be set aside. That it is the act of a married woman, calculated to impair the marital right of her husband, against public policy, and void. That, having planted the crop, he is entitled, under the laws and usages of this State, to reap it. And that he has refused to assent to any other disposition of the settled property
    That, on the other hand, the plaintiff, Roux, has been informed, and believes, that Thomas B. and Saxby Chaplin, and their co-adjutors, are using illegal and forcible means to entice the slaves so settled to leave their work, and have actually come upon the plantations, or some of them, entered the buildings, and attempted to dispossess him (Roux) and his agents placed in possession thereof for the purposes of the settlement, and thus threaten to destroy the growing crop,' and bring him (the said Roux) into great jeopardy.
    
      That he has applied to Thomas B. and Saxby Chaplin, and to Baker, to come to,, some friendly arrangement, and thus prevent the insubordination to be apprehended, when slaves are persuaded to quit their work, and when overseers are interrupted in their management; above all, that Thomas B. and Saxby Chaplin would abstain from forcible or other means to obtain possession of the settled property, and implead the two trustees and Baker, in this Court, setting forth their claims, so as to ascertain the rights of all parties peaceably and legally; “and if your orator has no further means of serving his friend Dr. R. L. Baker, then, that he may be discharged from his trust, and have his reasonable expenses paid.”
    The prayer of the bill is, that Baker and his wife, T. B. and Saxby Chaplin, and the co-trustee, Jenkins, may answer; that the “said deed” to T. B. and Saxby Chaplin be set aside, cancelled or modified, according as it may be adjudged wholly or partially void; that after a full hearing, such order may be made as will enable the plaintiff, Roux, to execute his duties as trustee, without hazard of unusual responsibility; or, if it be adjudged that Baker has no further interest in this estate, that he, Roux, may be allowed to surrender his trust, on receiving payment of his costs and charges.
    The writ of injunction is prayed against T. B. Chaplin and Saxby Chaplin, to restrain them from eloigning or interfering with the slaves, and other personables, and from disturbing the plaintiff’s possession of the real estates.
    Also that a receiver be appointed, if requisite, until the rights and interests of the parties shall be ascertained and declared.
    Also for general relief.
    The prayer for subpoena is only as to T. B. and Saxby Chaplin, Mrs. Baker, and the co-trustee, Jenkins; nor was Baker made a party.
    And the jurates is in the common form of jurates to answers, and not in the form required in bills of interpleader.
    I have been compelled to copy almost the whole of this bill, by the objections taken to it at the hearing, the validity of which could not have been made to appear so clearly in any other way. But it is manifest that this is no bill of interpleader, unless it be a bill of interpleader for the stake holder, instead of impartially stating the conflict from which his danger arises, and calling in the adverse parties to state and support their own cause, as he should do, to leave one of them out, assume his place, and undertake to state and maintain his cause for him.
    
      'Mis. Baker answers the bill. Admits the marriage and the settlement, and the substitution of trustees. States that when Baker proposed to her, she was disposed to believe, from his pecuniary condition, and the disparity in their ages, that her property was his main object, and would have rejected him, had he not repeatedly assured her that her right “ to do as she should be minded,” from time to time, and always, with every part of her property, after marriage, should be carefully reserved to her, and should always be acknowledged and held sacred by him. So, therefore, she is unwilling, little cause as she has to think well of him, to believe that Baker has ever been so reckless as to tell the plaintiff, Roux, that the clause in the deed now objected to, was inserted by the contrivance of herself and her two sons, without his knowledge. She is not only prepared to prove his professions before marriage, as she has stated them, but his deliberate, written admission, made nearly eighteen months after the. marriage, and strengthened by his oath, that this very deed of settlement, as it now stands, in all respects, was submitted to him for examination before the marriage, approved and willingly accepted by him, and afterwards, without any alteration or addition, executed by him.
    It had always been her determination to retain the control and disposition of her own property, whether she should marry or not. The circumstances connected with the proposal of Baker, already stated, confirmed her in her determination, as it suggested at least one means of attaching her intended husband to her, and of securing, to some extent, his consideration and respect. She only listened to his proposal, because it was distinctly stated and agreed between them, that precisely such a settlement as was executed, should be executed; and if the powers reserved to her under this settlement are illegal and contrary to public policy, then she has been grossly deceived, abused and defrauded by Baker and his lawyer, who drew the settlement for him.
    It is true she has abandoned him, but not by the persuasion of her sons or of any other person, but for causes which she states. But whatever the grounds of her withdrawal, she conceives they do not affect the power secured to her, as a purchaser for valuable consideration, under the marriage settlement, and are no excuse of the plaintiff’s for refusing to perform his trusts confided to him, by giving effect to the deeds of appointment she has made.
    She executed .these deeds freely, without persuasion or advice on the part of her sons or any one else, and without the knowledge of Saxhy, who is a minor,
    
      She could readily answer and refute every objection to the deeds, stated to have been made by Baker to the plaintiff— if he did make them, or if Baker were a party in court, or if the plaintiff had sworn to the bill in the usual manner in cases of interpleader; but, as the case now stands, she insists she has the right to suspect and charge combination between the plaintiff and Baker, &c.
    Saxby Chaplin answers by guardian. Is a stranger to all the matters stated in the bill, except that he has heard that his mother has duly executed certain deeds, by which she appointed certain property, real and personal,' to be held by Roux and Jenkins, in trust, for himself and his brother, Thomas B. Chaplin, and that the appointment was made in virtue of powers reserved to his mother in her marriage settlement. Submits his rights to the court, &c.
    Thomas B. Chaplin answers. Admits the marriage of Baker and his mother, and the execution of the marriage settlement, &c. The substitution of the trustees. His mother executed not only the deed of appointment exhibited with the bill, but several others, both before and after that one, appointing nearly the whole of the settled estate to be held in trust by the substituted trustees, for the use of himself and his brother, Saxby, of all which the plaintiff was duly notified, as he expects to prove.
    He claims that the property covered by these deeds be held according to their effect, and that Baker be excluded from interfering with it.
    Cannot believe that Baker makes the objections imputed to him, or, if he does, that they constrain the plaintiff to appeal to this court by this bill; or that the claims of himself and his brother embarrass him in his duty. He could easily decide upon the opposite claims, were it not, as defendant expects to prove, that he combines with Baker, and under his name, and as of his authority, brings forward charges which, if he had brought Baker into court, he would not have ventured to answer to.
    It is untrue that the reservation of power to his mother was inserted in the settlement by contrivance of herself and this defendant and his brother. He is prepared to prove that he was not within seventy miles of Charleston (where the deed was executed) either at the time of its execution or of the marriage, and did not see the settlement for several months after it was executed. And he is prepared, at any time, to produce Baker’s own written declaration, subscribed and sworn to by him, the 19th of February, 1845, that the terms of this settlement, now attempted to be impeached, were submitted to him, assented to by him without alteration, and executed by him.
    It is also untrue that he and his brother persuaded his mother to abandon Baker, &c. Equally untrue that, by undue influence, they forced her to execute the deeds of appointment. Their execution was her own voluntary act, decided upon without consultation with defendant.
    If Roux is truly desirous to have the objections, which he attributes to Baker, (and bearing on the validity of the power reserved to his mother and exercised by her in the deeds of appointment) tested and settled, his bill should have brought in Baker to interplead; and he should have annexed to it an affidavit “that he doth not, in any respect, collude with either of the defendants, touching any of the matters in question in the suit, nor is in any way indemnified by either of them, nor doth exhibit his bill at the request of either of them, but merely of his own free will, and to avoid being doubly vexed.” &c.
    Is willing that Roux be removed from the trust, and prays that he may account, &c.
    Jenkins answers, and admits that he and Roux were appointed as substitutes for the original trustees to the settlement.
    Has had notice of several deeds of appointment from Mrs. Baker to her sons, and being advised she had power under the settlement to execute them, is willing to recognize and give effect to them, and has made some exertions with that view, but, owing to difficulties interposed by his colleague and Baker, and never himself having been in the actual possession of any part of the appointed property, he has been unsuccessful. Is willing to perform his duties as trustee, and abide by whatever deed, &c.
    It appearing to the parties, I suppose, that nothing effectual could result from that bill, Thomas B. and Saxby Chaplin, on the 7th of October following, (1845,) filed another against Roux, Baker and Jenkins. This is the second of the cases.
    This bill states the execution of the marriage settlement, with the power reserved to Mrs. Field, the subsequent marriage and the substitution of trustees.
    1st Deed. That on the 17th of June, 1844, before the substitution, Mrs. Baker, in virtue of the power reserved to her, by deed duly executed according to the power, directed the trustees to hold and stand seized as to nine slaves therein named, and their increase, part of the settled estate, for the use of said Thomas B. Chaplin; and as to six other slaves therein named, and their increase, also part oí the settled estate, for the use of the said Saxby Chaplin, during their respective lives; remainder to the respective children living at the time of their deaths, with a further limitation in ease of the death of either of them without children, for the use of the survivor.
    2d Deed. That on the-of September,- in the same year, but after the substitution of trustees, the said Mrs. Baker in like manner executed another deed, by which she directed the substituted trustees to stand seized and possessed of certain other parts of the settled estate, namely, two tracts of land in Greenville, thirty-one negroes, with their increase, and household furniture, in said deed described, in trust to sell the same, and apply the proceeds to pay certain creditors therein named, to whom she was indebted then and before her marriage with Baker.
    3d Deed. That about the 20th June, 1845, she, by a similar deed, appointed certain other negroes and their increase, parcel of the settled estate, and in said deed named, in trust, if necessary, to sell and pay such part of the debts enumerated in the foregoing deed, as the property therein appointed should be insufficient to extinguish; otherwise to hold the said property, or the overplus, if any, for the equal use of Thos. B. and Saxby Chaplin, with such limitations as are mentioned in a certain other deed of appointment, executed by her on the same day, and hereafter described.
    4th and 5th Deed. That on the 16th of April, and about the 26th of June, 1845, she, under and by virtue of the power reserved, &c. executed two other deeds of appointment, one on each day aforesaid, by which she appointed and directed the said Roui and Jenkins, trustees as aforesaid, to stand seized and possessed of the tract of land in Colleton, called the Point Plantation, and the small island contiguous thereto, called Buzzard’s Island, and the plantation on Ashe-poo, called Dunham, and a large number of negroes set forth in the bill, four horses also named, and one half of all the cows, hogs, poultry, provisions, plantation tools, boats, flats, carpenter’s tools, carts, wagons and harness, belonging to Point Plantation and Walnut Hill, or either of them, to the use of Jenkins alone, in trust for Thomas B. Chaplin; remainder to such of his children as might survive him; and in default of such issue, remainder to Saxby Chaplin. And thereby also directed the said Roux and Jenkins to stand seized and possessed of the plantations called Walnut Hill, Fire Brass and River-side, and a piece of pine barren adjacent to the latter, on the same Island, (St. Helena,) and a tract of pine barren on Hilton Head, attached to and used with the River^ side plantation, and a number of negroes, in bill mentioned, four horses, also named in the bill, and the other half of all the cows, <fcc. as aforesaid, to the use of the said Jenkins alone, in trust for Saxby Chaplin, for life; remainder to such of his children as should survive him; and in default of issue, remainder to Thomas B. Chaplin.
    Which said several tracts of land, negroes, &c. constituted; the bill states, the whole remaining part of the settled estate, with the exception of a family of about — negroes.
    Of all which deeds, (copies exhibited,) the bill charges, Roux, Jenkins and Baker were duly notified shortly after the execution respectively.
    That Jenkins has always readily acknowledged the power of Mrs. Baker to make such appointments, and has been willing to hold the several portions of property appointed upon the trusts declared and expressed in these deeds, but has been hindered from performing his duty as trustee, by the threats and interference of his co-trustee, Roux, and by Baker. . »
    That Roux, so far from showing a disposition to give effect to the marriage settlement, of which he is trustee, has colluded and combined with Baker, to exclude these plaintiffs, (the Chaplins,) from the possession and enjoyment of the property appointed to them, and has lately filed a bill, wherein, as if authorized by Baker, but really of his own accord, and in contradiction to the sworn declaration of Baker, he has charged that so much of the deed of settlement as reserves the power to Mrs. Baker, &c. was put in by the fraud and contrivance of your orators, without Baker’s knowledge, thereby endeavoring to invalidate the instrument, which, as trustee, he was bound in good faith to preserve and defend.
    That Baker, with the knowledge and consent of Roux, and by his contrivance and collusion, is now in possession and enjoyment of the greater part of the property appointed to the plaintiffs, and they believe he, (Baker,) will be allowed by Roux, fraudulently, and notwithstanding the notice Roux has had, not only to receive the profits of that property, but in other respects “to do as he pleases” with the property itself, and Roux being unable to make good the loss, and the plaintiffs apprehending the actual removal of the property, as well as the consumption of the income, <fcc.
    The bill prays an answer, that Baker be enjoined from receiving the rents, &c. of the property, and from interfering with the property or the possession of it, and from removing' or attempting to remove, &c. and that Roux be restrained from paying over to him, or to his order, any part of the income, or putting him in possession, &c. That Roux be removed from his trust, and Jenkins declared the sole trustee; that a receiver be appointed ad interim, &c.
    Subpoena prayed against all three defendants, &c,
    Roux, in his answer, admits that he filed a bill to protect himself, &c. but denies collusion, «fee.
    Says that when he undertook the trust, he was informed tb at the substance of the marriage settlement, (divested of technichal terms, which he could not understand,) was that the property was to be held for the joint benefit of Baker and wife, during their joint lives; remainder to Baker, in case he survived, in one-third, while the other two-thirds were limited in remainder to the two Chaplins, or to their families; and though he had frequent conversations with Baker and the lawyer who prepared the deed, on the subject of the trust, never heard or suspected that any power, such as is now claimed, was reserved to Mrs. Baker.
    Totally ignorant of the technical construction of deeds, surprised by the-claim of powers for Mrs. Baker, of which he had never heard, and served with notices of the most opposite character from all parties, he had no course left but to apply to this Court, and in so doing he deemed it his duty to inform the Court of the impressions under which he assumed the trust, and all of the views he still retained in relation to it.
    But has no personal interest, and is only desirous the Court will settle the conflicting claims, and instruct him in his duty, &c.
    I do not find any answer of Jenkins in this case.
    Baker’s answer admits the execution of the deed of settlement, of which the copy exhibited is a true transcript. But utterly denies that he ever agreed to the terms of the said deed, or was aware, when he signed it, of what is now contended for, as its legal effect.
    The terms to which he agreed were: that the property of his intended wife was to be settled upon trustees, to apply the annual income to the joint use of himself and wife, for their joint lives, with remainder in one-third to him, (Baker,) should he survive ; and in two-thirds to the children of Mrs. Baker by a former marriage, or their families; and that the clause giving Mrs. Baker the power of disposing otherwise of her said property, was inserted without his knowledge or consent; and, as he has since heard, by the interference and advice of a, third person, in no way connected with either of the parties.
    
    True, he was informed afterwards an additional clause had been inserted ; but was told its effect was to give Mrs. Baker the power of revoking, should she will, the limitations in favor of her sons, as to the two-thirds; but was distinctly informed that it in no way affected his interests, as settled, according to the original agreement.
    And he never'doubted that this was the legal effect of the deed, until recently, (pub. sittings of this Court, 1845,) when his counsel informed him that the words of the clause, in their natural sense, and unexplained, did give Mrs. Baker full power to dispose of the whole estate, upon the determination of the joint life estate of himself and his said wife, but could not control the previous clause, which secured the joint life estate.
    That he lived in harmony and happiness, <fcc. until very shortly before the execution of the first of the deeds of appointment, except so far as the continued opposition of her sons to the marriage was a source of pain, &c.
    But about that time, for causes unknown to him, his wife absented herself from his bed and board, and, notwithstanding his urgent and affectionate invitations, &c. she still continues absent. Is willing to receive her, &c.
    Denies the right of his wife to execute the deeds of appointment, so far as they affect the income of the joint life estate; or one-third of the capital, in case of his surviving.
    It appears by the deeds set up in the bill, that his wife has attempted to divest herself of the entire estate, leaving herself not the smallest means of support — an evidence of such imbecility and undue influence, as, supposing her possessed of the power reserved in its fullest extent, should prevent these deeds from standing, <fcc.
    Then comes the third bill.
    This is a bill filed 18th December, 1845, by Baker, against his wife, Thos. B. and Saxby Chaplin, Jenkins, and Richard De Treville, (a new party altogether,) and states :
    That in the course of the marriage treaty between himself and his wife, by mutual consent, application was made to a lawyer to prepare for their execution a marriage settlement for his intended wife’s property, and the said lawyer was, with the full assent of both parties, instructed to prepare such a deed as would
    “ Secure to your orator the whole income of the estate, for the joint benefit of himself and his said intended wife, during the coverture;
    And, after her death, in the event of his survivorship, to secure to your orator an absolute estate in one-third of the property.
    The other two-thirds to pass to the children of Thomas B. -and Saxby Chaplin, children of his intended wife by a former marriage.”
    The deed was so drawn; but before the execution thereof, his said intended wife, on the very day fixed for their marriage, had it re-engrossed by the lawyer, and an additional clause inserted, without the knowledge or consent of him, (Baker,) but before its execution she informed him that the said clause was designed to give her the power of revoking the limitation in favor of the families of the two Chaplins, whq were then behaving very undutifully, &c. but that it was in no way to apply to the annual income, or the one-third limited to himself, in case of his survivorship.
    And he joined in its execution, believing the legal effect of the additional clause to be such as she represented; and remained of that belief until very recently, when the execution of similar deeds induced him to seek professional advice, and he was told by counsel, that the legal effect of the words, uncontrolled by the previous clauses, or evidence of fraud, would support the right of his wife wholly to set aside the settlement, and dispose of the estate, as if sole.
    That he lived happily with his wife, until some time in 1844, when she was induced by the Chaplins, without his privity or consent, to make the first deed in favor of creditors, at the very time that he himself was in treaty with the trustees, for a sale of property to be selected by him, (a privilege he thinks belonging to him,) for the same purpose. He resisted this deed, as an invasion of his power of selection, and ,as a fraud upon him, because executed without his knowledge ; all the while not perceiving the construction which might be put on the additional clause in the settlement; for the deed was cunningly framed, so as to refer partly to another clause, provided for the payment of debts, and only in part to this (the additional) clause. And he never understood the insidious character of the deed, until other deeds followed. The creditors named in that deed filed their bill to enforce it, which is yet pending.
    About the time he discovered the execution of the deed referred to, his wife withdrew from him, and notwithstanding his repeated solicitations, &c. And has since, under the influence of the Chaplins and their confederates, among whom is Jenkins, one of the trustees, executed several other deeds, disposing, in prcesenti, of the whole estate to the Chaplins, Jenkins and De Treville, and depriving him, (Baker,) of the income, during coverture, secured by a clause previous to that reserving power to Mrs. Baker, &c.
    That the Chaplins and Jenkins, pretending to claim under these objectionable deeds, instead of coming to this Court for relief, if they had ground for relief, have pursued a system of annoying and embarrassing the operations of the settled estate.
    That Jenkins, since his appointment as trustee, has tampered with Mrs. Baker, one of the cestui que trusts, and confederated against Baker, the other, to defeat the main objects of the deed, and to divert a portion of the trust estate to his own use.
    Referring to the bill filed by Roux, the 7th August, he says: “ in obedience to the subpoena under the said bill, your orator now answers by this bill of complaint, and prays leave to refer your honor to the .said bill and its exhibits, for a full statement of the case, and copies of all the deeds.”
    He prays an answer from Treville, Jenkins and the two Chaplins; that they be enjoined from intermeddling with the trust estate, during the coverture of Mrs. Baker by him, and be perpetually enjoined from meddling with one-third of it; that the additional clause described be restricted to the two-thirds, as originally intended, or totally set aside.
    Subpoena is prayed to these parties above named and to Mrs. Baker.
    It is remarkable that, of all the answers in all of these cases, there is not one, the date of the filing of which I can discover by the copies furnished me, a very great inconvenience in some cases, though it may not be in these. I take up first, DeTreville’s answer.
    He admits that, on the 25th. of June, 1845, Mm. Baker executed a deed, by which she, after appointing certain portions of her settled estate to be sold by her trustees for paying whatever balance may remain due to certain of ’her creditors, for whom she had provided by a similar deed of appointment, made in September, 1844, (so that it appears that my copy of T. B. and Saxby Chaplin’s bill is incorrect,) directed them to pay to this defendant $485, the amount of his bill for professional services, rendered to her since her marriage; but he knows nothing of the circumstances attending the execution of the deed, nor by whom she was influenced to make it.
    That some time in June, 1845, he was informed by Thomas B. Chaplin that his mother, who, this defendant believes, then lived with him on St. Helena, desired him, (defendant) to prepare certain deeds of appointment, of which the above mentioned deed was one, for her to execute, and left written memorandums for his instruction. He prepared them accordingly, but in the deed in which his demand is provided for, he left a blank open to be filled with the amount of his bill. ■which had been before rendered to Mrs. Baker for her examination. This is all he knows of the matter. Mrs. Baker lived twelve miles from him. He did not see her nor get any instructions from her directly before he prepared the deeds; and has never seen her since. Shortly after he prepared and sent the deeds to her, and before he knew or heard of their execution, he went to the North, and returned about the middle of August; and, some considerable time .afterwards, two of the original deeds were handed to him to get them recorded, when, for the first time, he saw that the blank had been filled in the handwriting of Mrs. Baker herself, with the amount of his bill. The $485 were for professional services rendered to Mrs. Baker, from the beginning of 1844 to the 26th of June, 1845, including a charge for drawing an instrument in the nature of a last will, of great length and difficulty, appointing the uses of the whole estates, real and personal. But he submits, that his bill having been examined and approved by Mrs. Baker, and allowed by her, without alteration, no other person has a right to question its correctness; especially as its payment is provided for out of property over which Mrs. Baker had secured to herself, for valuable consideration, the absolute right of disposition. But, if she desires it, he is perfectly willing to leave his bill to the judgment of any tribunal whatever, and to abandon his right under the deed of appointment. He has never urged his claim under the deed, and has never derived any benefit from it; and has always been willing to abide the decree of the court in the cases pending on the deeds of Mrs. Baker, in which cases the nature and extent of her power were distinctly put in issue; and he is now willing, not only to abide the decree, but to say that if sufficient evidence be produced to satisfy this court that Mrs. Baker was unduly influenced by any person to execute the deed in question, he will at once forego all the benefit he might otherwise claim under it.
    Jenkins’ answer. States that he consented to accept the trust at the solicitation of Mrs. Baker, and as her friend; and, as far as Baker and Koux would permit him, he endeavored to perform his official duties.
    By the deed of 28th June, 1845, Mrs. Baker directed the trustees to hold seven of the settled slaves to his (Jenkins’) use; but he never exercised the least influence or persuasion, directly or indirectly, with her in reference to that or any other of her deeds. Never knew of her intention to make any disposition in his favor till some time after the execution of the deed, and has never derived any benefit from it, and has never been in the actual possession of the negroes named in the deed, even as trustee, and has never attempted to get the possession.
    Is advised Mrs. Baker had the power to appoint; and as she has never, to his knowledge, expressed dissatisfaction with her voluntary act, he is now disposed to claim the benefit of the deed.
    Recapitulates and denies all the charges against him, &c.
    Saxby Chaplin answers by guardian. Has heard of the marriage settlement, the power reserved by his mother, and* the deeds appointing portions of the settled property to his benefit, and claims the benefit of them.
    The charges of confederating with his brother to influence his mother to execute the deeds are untrue, and the fact that he resided mostly, and always from the beginning of 1843, at Walterboiough, while his mother executed some of the deeds in Greenville, and the rest on St. Helena, (being known to Baker,) should have preserved him from the imputation.
    Submits his rights, &c.
    Thomas B. Chaplin’s answer. He lived at the time on St. Helena, 80 miles from Charleston, where his mother married Baker ; knows nothing of the circumstances preceding'or attending the execution of the settlement; and knew nothing of the intended marriage till he saw it announced in the newspapers.
    The charge of misleading his mother to execute the deeds is incorrect. The first deed, in favor of respondent, was executed in Greenville, while the husband and wife were living together at the time, and respondent was on St. Helena. The deed in favor of creditors, particularly alluded to in the bill, was one in which respondent could have no personal interest; and besides, was executed in Greenville, while respondent was on St. Helena.
    Admits, that after the deed of ,28th June, 1845, in favor of defendant and his brother, and their children, his counsel advised him the trustees could, under no valid pretence, refuse to recognize him as the equitable owner of the property included in that and “ the preceding deed described and mentioned,” and were bound by Mrs. Baker’s appointment; and, thereupon, he did go upon one of the plantations, so appointed for his use, and exercise “ certain acts of ownership,” for which Baker has brought an action of trespass, and Roux, upon his bill, has obtained an injunction. Beyond this single act, the charge of his pursuing a system of annoyance to the estate’s property, &c., has not the slightest-foundation.
    
      Knows nothing of Mrs. Baker’s reasons for leaving Baker, except upon her statement.
    Repeats his denial that he ever attempted to influence her in her conduct either towards himself or Baker; and that he has, or ever had, influence to induce her to execute any deed, unless she had resolved before-hand to do it
    Argues again, the sufliciency of the power reserved in the settlement to sustain the appointments made; that he takes by assignment from Mrs. Baker, a purchase, under the settlement, and is therefore, himself, to be ranked as a purchaser, &c.
    Mrs. Baker, by her answer, denies that she ever instructed, or that Baker, with her knowledge or consent, ever instructed the lawyer to draw the settlement as stated. The deed never was so drawn; nor did she, on the day of marriage, cause it to be re- engrossed, with an additional clause, with or without Baker’s knowledge; and, therefore, the charge that she informed Baker, before the execution of the deed, that that clause was designed to give her power to revoke the limitations in favor of- the family of the Chaplins, but no way applied to the-annual income, or the one-third limited to Baker, as stated, is utterly untrue in every particular.
    Baker discovered, before the marriage, that she was resolv-' ed to enjoy the rignt to control her large property, from time to time, as she pleased, whether she married or not; voluntarily proposed to her to have a settlement, and one conforming, in its terms, to her views; and advised her to take counsel of a solicitor, and make her views known to him, and assured her, he would carry them out to the full extent of his ability. She accordingly retained and conferred with counsel, gave directions for the settlement, and had it drawn according to her own pleasure, without any interference of Baker ; and when its terms were communicated to him, he assented to them, without alteration, and duly executed the settlement which was drawn up.
    Her counsel’s first instructions were to draw up a settlement, by which, in case of her dying before Baker, he was to have an estate for life in the whole of whatever remained of the settled estates not disposed of by her appointments, but in other respects like this settlement; hut afterwards, by the advice of a friend, the only one near her at the time, she directed the lawyer to alter the draft, so as to give to Baker, in case he survived, one-third, for his life, of so much of the settled property as should remain, at her death, unappointed. 'Even this change was communicated to Baker, before the deed was prepared, and he assented to it. And in all her instructions to the lawyer, her reservation of perfect control over the property, just as if she were to continue a feme sole, was regarded as indispensable to the settlement; and without it she would never have married Baker.
    She abandoned him, &c. but was not influenced by T. B. or Saxby Chaplin, or any other person; but was compelled by threats of violence, &c.
    Submits, that whatever the cause of her abandoning him, it cannot diminish the power reserved, &c. as in her former answer.
    Admits the execution of the deeds of appointment, but denies the influence, &c. charged. They-were prepared by her own direction, and of her own will, &c. and she is satisfied with them.
    That of September, 1845, was made in virtue of the only power she had, and refers to no other power than that reserved in the clause objected to. Baker never had the right of selecting the property for payment of creditors he contends for, and never proposed before marriage, any thing so absurd as that his assent to the exercise of her reserved power should be first obtained, in such a case. If he intended to question her reservation of power, his time to do it was when he was called to answer the bill filed by the creditors, whose claim depended entirely on the validity of the settlement; whereas she understands the only objection he then made, was that the power did not extend to making provisions for her debts as surety.
    
    Lastly, among the pleadings, comes the fourth case. When the bills or answers were filed, does not appear by my copies. I must repeat my constant complaint of the imperfection of copies furnished to the Court.
    This is a bill filed by Roux, and refers to his former bill, which it incorrectly asserts made a party of Baker among the defendants.
    It states that since the filing of that bill, he, (Roux,) has been served with copies of two addditional deeds of appointment, (of which copies A and B, both dated 28th June, 1845, are exhibited and included in them, already noticed.)
    That De Treville, being a claimant under one of them, should be made a party to his former bill; of which he prays that this may be regarded as a supplement, and prays subpoena to De Treville, Baker, Mrs. Baker, T. B. and Saxby Chaplin, and Jenkins.
    De Treville answers as before. So does Saxby Chaplin. T. B. Chaplin refers to his former answer to Roux’s bill, and as to the two additional deeds, denies influence, &c. and reasserts the power of Mrs. Baker, &c.
    Jenkins answers: refers to his former answer to Roux’s bill, and as to the rest, answers as he did in the other cases.
    I rejoice unfeignedly that I have got through this long-statement, which, if it had been made at the hearing, would have enabled me to decide the few points, (to be picked, here and there, out of the mass,) before I left the court. But the delay ever since has been inevitable. The other causes which I brought from the circuit on which these cases were tried, (many of them nearly as voluminous as this, and all more difficult,) occupied my whole time till the meeting of the Appeal Court in May. Then commenced the summer circuit, which again gave me business, (hardly to be constantly attended to, in my state of exhaustion,) during the heat of summer. But as much as I could do has been done, from that time till this. And of what I had to do, let these cases be a specimen. If all these things be considered, this will serve to correct the idea, so prevalent, that this Bench is not overtasked; and, at least, to abate, in some degree, the clamors against the delays in this Court. It is hard that that which arises from labors so intense as should beget compassion, instead of drawing attention to the fidelity and application evinced in the discharge of these labors, is converted into a ground of complaint against the laborer. But this I say, with satisfaction to myself, that no part of my public conduct, whatever other infirmities it may display, bears, in my own view, any trace of shrinking from labor, however severe. I do what I can, and must be content, if others do not appreciate my exertion. It is not often that causes are delayed long in my hands, and I cannot but feel it, when I am myself embraced in general denunciation, implying actual neglect, even in the public prints.
    All the evidence is in writing. By a letter from Roux to T. B. Chaplin, dated July 10,1845, it appears he had received notice of at least some of the deeds of appointment; and he says he will take steps, as his counsel may direct, to get instructions for the execution of his trust. He forbids, in the mean time, any proceeding on the part of Chaplin, to change the possession of the property, which he says will only lead to a breach of the peace. That Baker is in lawful possession, by his permission as trustee; has an interest, and does not admit Chaplin’s claim ; and “if you think proper to take possession, except under warrant of some lawful tribunal, you do so at the peril of the consequences: nothing but force can change the possession entrusted to me, unless directed by law.”
    
      
      Daniel P. Jenkins says he saw the three several deeds of ap-' pointment to T. B. and Saxby Chaplin executed, as well as the one to Daniel Jenkins. Mrs. Baker’s servant brought a message from her, requesting to see witness. He went to her own house, in St. Helenamiie, where he met T. B. Chaplin and Mrs. Baker. Was accompanied by his brother, Dr. Jenkins, who witnessed the deeds with him. Thinks,-from what he saw, that Mrs. Baker executed the deeds of her own free will. T. B. Chaplin was in the same room, ten or fifteen feet from her, when she executed them. From what he saw, he thinks there was no influence exerted upon her. The only persons present were, Mrs. Baker, T. B. Chaplin, Dr. Jenkins and himself. De Treville was not present; and witness thinks he was, at the time, in Beaufort, a distance of twelve miles. Heard Mrs. Baker say she was going to leave her sons some property. She and T. B. Chaplin lived at opposite sides of the village, half a mile apart. Daniel Jenkins was not present at the execution of the deeds. He resided twelve miles from the village where Mrs. Baker lived.
    
      Cross examined. Is first cousin of Daniel Jenkins. Baker had been living at the village, St. Helena, about two months before the deeds were executed. Mrs. Baker was, at the time, living apart from him. He was not in St. Helena then. Witness lives near Mrs. Baker, and knows that T. B. Chaplin visited her about once a week. Witness’s mother and Mrs. Benjamin Chaplin, (Mrs. Baker’s cousin,) were her most constant visitors, and their visits were about once a month. She lived entirely alone, no inmate in her house. Her relatives disapproved her marriage, except witness’s mother, and had cast her off. Since the execution of the deeds, her family intercourse has remained the same. She lived by herself till about the middle of November, when she removed to the house of her son, T. B. Chaplin, where she has ever since resided. Has heard T. B. Chaplin say he wished his mother had not married. T. B. and Saxby Chaplin were each worth about sixty negroes and a plantation, before these deeds were executed. Witness never heard the deeds read.
    
      Examined in reply. Knows that Mrs. Baker went, after the summer months, to live with T. B. Chaplin, at his invitation, because she had no where else to go.
    This is the only evidence upon the subject of the influence under which it was charged the deeds were procured.
    The evidence as to the circumstances under which the marriage settlement was executed, was more voluminous.
    The proof introduced in support of the- charges made by Baker and Roux, is to be found in the examination of Mrs, Toomer, a sister of Baker.
    She staid at the Charleston Hotel, where Mrs. Field and her brother, Baker, also staid, at the time of the marriage treaty, and was intimate with both. Does not know upon what terms Mrs. Field originally agreed to settle her property ; but heard her say she intended to make Baker comfortable. After her instructions had been given to Mr. Memminger, who was to draw the settlement, Mr. Webb called on Mrs. Field, and after he left her she seemed troubled, and said she would send for Mr. Memminger, and get him to insert, in the deed of settlement, “ a clause or power to Mrs. Field to dispose of her property as she might think proper, independently of the marriage settlement.” She never communicated with witness further, as to the alteration of the settlement. But after the marriage, witness heard her say that “ had she known that Baker’s indebtedness was so small, she would not have been bothered with lawyers and marriage settlements.” She seemed to be hostile to her eldest son, (T. B. Chaplin,) before her marriage. Witness remembers to have seen Saxby Chaplin and his wife with her, before the marriage. The witness cannot say whether Baker, before he executed the settlement, was informed of any alteration made in it.
    On the other side, come Mr. Memminger and Mr. Jervey, and another piece of evidence included in a record hereafter to be mentioned.
    Mr. Memminger says that a few days, (about a week or less,) before the intermarriage of Baker and Mrs. Field, Baker called at the office of himself and Mr. Jervey, who are partners, told him of the proposed marriage, and requested him to call and see Mrs. Field. On his inquiring whether he was to call in the character of counsellor of Baker or of Mrs. Field, Baker answered that Mrs. Field wished to take counsel in relation to a marriage settlement, and that he deshed Mr. Memminger to act as her adviser; and that he did not desire to interfere, in any manner, with her wishes in the premises.
    Baker, on this occasion, stated to witness that Mrs. Field desired to consult a legal adviser; that her usual adviser had been another professional gentleman; but he, (Baker,) had stated to her his preference for the witness, upon which she had sent for him. On witness’s inquiring as whose lawyer he was to go, Baker stated that he wished Mrs. Field to do exactly as she pleased with her property; that witness was to see her exclusively as her own adviser; and that it was his desire that any settlement should be executed which she' desired. Witness accordingly called on her, as her lawyer* and not as Baker’s. Baker introduced him to her, and left them alone to confer. Mrs. Field stated to him, as her counsel, the position of all her property, and gave him an outline of her family concerns; and stated her desire to have a settlement prepared. The leading idea in her mind seemed to be, the preservation of power over her property, as far as was practicable. She consulted witness as to the best settlement, Witness expressed his views freely, that it was proper, in a lady who was to surrender control over her person, to give the husband a large participation in control over her property; but she yielded with reluctance to advice tending that way. Witness went no further than to state his views, and then took her instructions. He received and noted them at the time, and then retired. From these instructions he prepared a draft of the proposed settlement. It was prepared entirely from Mrs. Field’s instructions, except that part which related to the creditors of Baker. He applied to him, (Baker,) to know whether he wished any estate he might take, under the settlement, to be protected from his creditors; and his instructions in this respect were embodied in the draft.
    Being interrogated whether he did not read this draft to Baker, or explain to him its conditions, power and provisions, and if so, how long before the marriage, he answers, “ I cannot answer this interrogatory in a manner so distinct as to constitute testimony. Mr. Baker was in my office from time to time, as the papers were progressing, and we must have conversed about them; but I have no distinct recollection of any of these conversations, except one, which was [took place] as I was leaving Mrs. Baker, at the Charleston Hotel, Mr. Baker met me in the passage, and I told him of the provision made for him, in case of his surviving her. It is but just, however, to Mr. Baker, to state that he so completely filled my mind with the belief that he had no desire to interfere with Mrs. Field’s wishes, be they what they might, that 1 would not have considered it necessary to explain to him any of the provisions of the settlement.”
    He proceeds:
    “ I cannot say that I ever read over to Mr, Baker the draft or settlement at all. My practice was, when the draft was made, to hand it to my partner, Mr. Jervey, to be engrossed and read over to the parties. I cannot now remember how the thing was conducted in this instance.
    “ The first draft was engrossed, but before it was executed Mrs. Field sent for me; and I found that her opinions had undergone a material change, since I had last conferred with her. She directed a change to be made in the settlement, as to the limitation in favor of Mr. Baker, after her death, and there was so little time intervening between this change and the marriage, that I did not make an entirely new draft, but merely drafted over the parts changed.
    
    “I annex hereto the original first draft. The settlement, as finally executed, will exhibit the precise points of difference which the new instructions produced.
    “ I cannot state with certainty, that I read over the changed draffito Mr. Baker. A single circumstance which remains on my memory, proves that he must have known of the change. He spoke bitterly against Mr. Thomas L. Webb, (Mrs. Field’s factor,) and told me that Mr. Webb had been with Mrs. Field, and had been prejudicing her mind against him.
    “ The circumstance in relation to Mr. Webb induces me to believe that Mr. Baker did not like the change made in the settlement; but having decided that Mrs. Field was to settle her property as she pleased, he did not propose to interfere with the change.
    “The deed of settlement which was finally executed, carried into effect, according to my judgment, the wishes of Mrs. Field, as finally expressed to me.
    “ 1 was instructed by Mrs. Field, to secure to her the control over her property, in the manner provided by the deed, and I drew such a deed as would, in my opinion, execute her wishes.
    “ The instructions of Mrs. Field, [referring to her original instructions — -vide interrogatory 17,] could be carried out faithfully, only by making the limitations subject to her power of disposition and- control. To act over her property as nearly as possible as a feme sole, was the leading wish expressed by her.
    “Mr. Baker throughout declared that he desired such a settlement to be drawn as Mrs. Field desired; and that he would not interfere. I remember distinctly the impression left on my mind, that I had never seen an occasion where a man, marrying a fortune, had acted more handsomely, in waiving all interference with the lady’s wishes and control over her fortune.
    “Although I cannot remember particular conversations, yet, if I am to state results on my own mind, I must say that I have no doubt all the terms of the settlement were well known to Mr. Baker; whether he comprehended the effect of them I cannot undertake to say. As to the power of disposition and changing the estate, the fact that such a power was to be given by the settlement, was a distinct subject of conversation with Mr. Baker. Part of his plan was to raise money to pay off Mr. Webb, and take his business from him, and to receive money for travelling with his intended wife, during the summer, which had begun. I brought to his view that, under this power to change, the money could be raised, and recommended him to see the- house of Ladson & Co. on the subject; and, in pursuance of this recommendation, an arrangement was made with this house.
    “ I have said that Mr. Baker’s language in relation to Mr. Webb, induced me to believe that he knew Mr. Webb to be the author of the change, [in the settlement.] I had my own conviction that Mr. Webb was the person, from a conversation' I had with Mr. Webb; but I did not communicate this conviction to Mr. Baker. After the marriage I was made certain of the fact, by Mr. Baker’s statements, when he transferred his business from Mr. Webb.”
    “ I read it, [the settlement] over to none of the parties, as far as I recollect. My partner, Mr. Jervey, attended to this duty.
    “ Mrs. Baker’s instructions to me never contemplated the disposal of the whole, or even the greater part, of the property ; and I certainly never contemplated any case, but the exercise, in good faith, of the power, for the proper advancement of the usual arrangements of a family. If I am permitted to answer this question, I would certainly say that the execution of such deeds, [deeds by Mrs. Baker, conveying away every cent of the property, without reserving any interest for herself or her husband —vide 5th cross interrogatory;] is a fraud upon the rights of Mr. Baker; and I ought, in any event, to say that I have no doubt, that had such been considered within the scope of this power, I would have felt bound to limit its words; as I neither would have asked Mr. Baker to sign such an instrument, nor do I think he would have signed such a one.
    “I feel satisfied such an exercise of power was neither contemplated at the time by Mr. or Mrs. Baker.
    “As I have said already, no man could have acted with more fairness, liberality or confidence in the integrity and justice of a lady, whom he was about to marry.
    “ Mr. Baker did not interfere with these conferences, (at which Mr. Memminger received his instructions from Mrs. B.) even by his presence or interruption, or in any way that I could perceive.
    “ I nevdr contemplated a disposition of the whole of the settled property; and, therefore, never spoke of such a matter to Mrs. Field. But we both contemplated dispositions of part; and the intention was to secure a power, such as a person sui juris would exercise. For instance, no one ever contemplated the giving away all his property in his lifetime; though he would certainly contemplate, (in any permanent settlement,) the probability of a sale or exchange, or the advancement or aiding of a child or friend, or borrowing money on a mortgage, or the like.”
    
      Mr. Jervey says that he engrossed the deed executed, from the final draft by his partner; and that it was not ready for execution till about 2 o’clock, P. M. of the day of marriage. He was present, and saw it executed, and read it over carefully to them, before they executed it. Does not recollect that either of them asked, or that he gave, any explanations of any portions of the deed to them, or that either of them expressed any dissatisfaction at any of its provisions.
    The best piece of evidence is the answer of Baker to a bill filed by Levy et al. vs. Baker, Roux and Jenkins, the 28th of December, 1844.
    In order to see the bearing of the portions of the answer mlied on here, it is necessary to state-that that was a bill filed by two of the creditors, provided for by the deed of September, 1844, on behalf of themselves and the other creditors also provided for in the same deed, to enforce the appointment made thereby for their benefit. The bill is introduced by a statement of the marriage and marriage settlement, the principal provisions of which are briefly sketched; and resting the deed of appointment upon the power reserved by Mrs. Field, now in question, the bill sets it out briefly but substantially, and the settlement is exhibted. In after parts of the bill it is charged that Baker and the trustees refuse to give effect to it; and particularly as to Baker, it alleged that, from a disposition to obstruct the payment of his wife’s debts, he gives out various surmises against the operation of the settlement, dec.
    Therefore, in Baker’s answer, he says that on the eve of the marriage, “ this defendant, seeing that the said Isabella was entitled to a considerable estate, real and personal, and desirous to secure to her the use and enjoyment of the same, voluntarily proposed to her to have a settlement made, before their marriage; and that the terms of such settlement should entirely conform to her views. That accordingly he advised the said Isabella to consult with a solicitor, and make her views known to him; and assured her that he would carry out the same to the full extent of his ability. That accordingly, the said Isabilla retained and conferred with counsel, and gave her directions for the said settlement, and had the same drawn, according to her own free will, without any interference on the part of this defendant. That when the terms of the settlement were com/municated to him, this defendant received and assented to them, without alteration, and duly executed the deed which was drawn up. And this defendant, further answering, saith, that the copy filed with the bill, is a true copy of the said settlement.”
    It would be a great injustice, however, to this party, to stop short at what I have quoted ; because although it may conclude him as to some objections he urges to the settlement here, it leaves others open, and shews that as to them, at least, he has been consistent.
    He proceeds immediately to state that he had full confidence in his intended wife’s sense of justice and propriety; and the residue of the answer is a series of complaints of the abuses of that confidence. He objects to the deed in that case, as taking place of better concerted and more prudent, while, at the same time, equally efficacious efforts on his part to pay his wife’s debts, which to his surprise he found very considerable. He objects to some of the debts provided for in it, as not being the debts of his wife, but debts of other persons, (T. B. Chaplin,) and conceives it proper that the creditor should go against him as principal, in the first instance; or that the remedy against him should be assigned for the reimbursement of the settled estate. And he even speaks of some of the other deeds of which he says he had heard; and declares his intention to resist them, as not coming within the intention with which Mrs. Baker had reserved the power set out in the settlement.
    This is as full a statement of the case as I can make; and I have taken particular pains to leave nothing out, because the amount involved is very great; and although I shall make use of very few of the ample materials before me, (the case being plain one way or the other, as I conceive,) I desire to give every opportunity to correct the very short judgment which I shall pronounce.
    There is no evidence of the fraud and undue influence charged against the appointees under the several secondary deeds executed by Mrs. Baker. The execution of such instruments may be evidence of great improvidence and egregious folly on her part, of which she may have cause to repent very bitterly; but her competency to contract has not been questioned; she has made no complaint: and after full time to deliberate upon what she has done, she declares, and continues to declare, her adherence to it. We may suspect undue influence, but it is impossible for me to discover in the evidence before me any ground upon which I can safely rest the suspicion.
    We are obliged, therefore, to comeback to the marriage settlement, upon Vdiich these deeds depend. This difficulty arises altogether out of the clause in the settlement reserving power over the settled property to Mrs. Baker, notwithstanding her coverture; and whether they shall prevail or not depends upon two questions:
    1. Whether that clause is rightly in the settlement; and
    2. Whether the appointments fall within its limits.
    There are two ways in which the clause may be supposed to have found its way into the settlement; by fraud or mistake ; and accordingly as the evidence may establish the one or the other, the settlement might be set aside or reformed.
    The evidence is too clear to admit of discussion, that there was no fraud in the case. The clause was not put in surreptitiously. This unfortunate husband, from the beginning of ■the present cases, seems to have been casting about -for some solid ground on which to rest his objections. But the most hopeless on which he could have pitched, was, that the settlement, as it now stands, was imposed upon him.’ It is fortunate for him that his bill, which contradicts his answer in Levy’s case, is not sworn to as that was. There is a conflict of statements, which his perplexities may extenuate; but not of oaths, which nothing can excuse. But how can any man reconcile his answer to Chaplin’s bill with the other answer to which I have alluded, and which was put in evidence at the hearing?
    It is not necessary to go beyond that answer to shew every thing requisite to bind him. He makes no agreement, and stipulates for no terms. His agreement is that Mrs. Field shall select the terms according to her pleasure. The terms are made known to him, and he accepts them. There could be no surprise upon him, because his mind had not resolved upon any thing in which he could be disappointed. He asked nothing, and therefore could not consistently complain if lie received nothing. Or, if what he had been told at one time he would get, was taken away or withheld, he could not consistently complain, because his bargain was that all might be withheld. And as to the terms, whether he understood them or not, can make no sort of difference, because he asked for none, and agreed to take any that might be proposed.— Courts do not sit to make bargains, for those, especially, who have full opportunity to make them for themselves, and neglect it; nor to reform bargains for those who cannot have been surprised ; nor to set them aside lor those who it is impossible can have been defrauded.
    I cannot be taking a wrong view of this answer. It is confirmed in every particular by Mr. Memminger’s testimony, except in this, that in the answer we have Baker’s re-assertion of his agreement nearly two years after it was made.
    What more can we have than this ? There is something more. The complaint is, that after another form of settlement was fixed upon, this clause was for the first time introduced. The first draft is produced by Mr. Memminger with this identical clause in it, word for word, not a syllable altered.
    I will not follow a thing so plain any further.
    Then as to mistake, was there any ? Let it be conceded that he claims a mistake, who, by his own understanding, was to allow every latitude that the other contracting party chose to require. Put this case upon the highest ground that can be chosen, and suppose it is a case in which the party comes to correct a mistake of law. The mistake, as we have seen, could not have been as to the words constituting the clause, but as to the legal operation. The rule, is clear that when you want your legal mistakes corrected, you must prove that you were mistaken. If a man is ignorant of law, he cannot prove that. But if he is mistaken, which means misled, he can prove it. If a man goes to his lawyer and takes his advice and gets wrong advice, he can prove the advice he got by him who gave it. But Mr. Baker had no lawyer, and wanted none. He asked no counsel and was not misadvised.
    If Mrs. Field had been misled she could have proved it. But Mr. Baker cannot prove a mistake, because he depended on his own judgment, and no one can explore the recesses of his mind and say whether he really was mistaken or not.
    And there is another consideration. There must be mutuality in the administration of remedies. Is there any evidence which shews that if the settlement had been presented ¿s Mr. Baker would now have it, Mrs. Field would have accepted it ? If the deed were wholly set aside, her rights- as a feme sole are taken away by the marriage, and instead of having a settlement as she expected, and bargained for, she is left without any ; her property taken away from her by the marital rights of her husband, without an equivalent. But as the remedy is to reform, and not to annul, the instrument, by what contract will you reform the instrument in this case? Where is the proof of any other contract than the one which was made and executed ? I confess I can find none.
    If the instrument were to be reformed by the contract intended by Mrs. Field, her intention, as expressed to Mr. Memminger, was to retain the control she then had over her property, as far as practicable. Then the question is, is it legally practicable for a woman to make a settlement by which the power of the grantor may be exercised over the whole property from time to time, at her pleasure, and according to her pleasure. And will this, as an abstract proposition, be disputed ? And if this can be done, is it done by this deed ? If it is done by this deed, the deed conforms to Mrs. Field’s views and intentions, which were to govern, and should not be reformed.
    There is one consideration here which had nearly escaped me. It may be possible, not only so, but it is often the fact, that two persons unite in a contract, the operation of which is differently understood by them. In this case, there was a set form of words in the deed; but the husband and wife may have had different ideas of theirlegal operation. That is not enough to annul the bargain, or to reform it. Nay, if it were still executory instead of being executed, it would be enforced ; and there are very few bargains that could stand, if the law were otherwise. The law, as I lay it down, is in conformity with Kennedy vs. Lee, (3 Meriv. 441,) and our own case of Neufville vs. Stuart, (1 Hill Ch. 159.)
    The only ground left is, that the appointments are not warranted by the clause reserving Mrs. Baker’s power.
    The extent of the power reserved must depend altogether upon what appears on the face of the settlement. The words of the deed are not to be explained by extrinsic evidence. It is the instrument, and the instrument alone, from which we are to learn its intentions ; and this is to be inferred bjr a fair construction of its terms. We are not to be guided, in this branch of the discussion, by explanations given even by the draftsman. The validity of the deed being once established, it must speak for itself; and, what it says that is the contract of the parties.
    It is little considered by those who object to this doctrine, to what a state of insecurity the rights of men would be reduced, if, under the pretence of explaining written instruments, evidence might be received, while the instruments might be perverted to any purpose, and effectually destroyed.
    The power, according to the clause reserving it, is to be exercised at the pleasure of the grantor, “ if she shall he minded to dispose it.” It extends throughout the whole property, “ any portion of the said premises.” It is a power which is not exhausted by any single act, but may be exercised “ from time to time.” It may be exercised “ in any manner what
      
      ever.” It authorizes the utmost latitude as to the persons in whose favor it is to he exerted, and as to the interests to be conferred on them; “such persons” “such uses,” and upon “ such limitations and conditions,” as the said Isabella shall order and direct.
    I can see no limit to this. It is said, however, that it was never intended, nor should it be so construed as to authorise appointments calculated to trench upon the main objects of the settlement. What is the real meaning of this objection ? Is it that the power could not have been intended to deprive the parties interested under the other provisions of the. settlement, of the interests thereby indicated? Then, the reservation of power means absolutely nothing; for any and every exercise of it tends to destroy the interest spoken of, to .a greater or less extent, according to the degree in which it is exerted. And what were the main objects of the settlement? Neither party is to arrogate them to himself. The main object was the whole settlement, with all its provisions, 'and the reservation of this power, whatever may be its extent, was as much an object of it as the interests of any other party. The allowance of it in its integrity is not only an express stipulation of the other party, but is as much an implied condition of the contract as any other feature in it.
    ■ Is thereno limit then to the power? None that I can perceive, but the discretion of the appointee. That is the measure established by the contract of the parties; and, so far as I can see, must prevail. It is not the Court that has given, or that now gives, license to Mrs. Baker; it is Baker who does it. And if she is allowed to act capriciously, it is not by the leave of the Court, but by his. And when he comes to ask -that she be restrained, he must shew some excuse on the face of the contract, for its interference. If, as is instructed an Fronty vs. Fronty, (Baily Eq.) there had been any purposes indicated in the settlement, for which the power was to be exercised, (as for . raising portions for the children, and the like, as put by Mr. Memminger,) the exercise of the power would be restrained to those purposes. But an unlimited power means an unlimited power, and a capricious power a ■capricious power, not only in common speech but in law; and it would be repugnant to law as to justice, in an enlarged sense, that he who has granted it in consideration of marriage, should be allowed to recall or question it.
    Consider for a moment the difficulties in which the Court would involve itself, if it undertake to interfere in thjs case. Upon what ground should it proceed ? If upon that suggested by counsel, that Mrs. Baker has proceeded to a length substantially setting aside the whole settlement, then, (not to insist upon the obvious fact that the power reserved by her was to do that very thing, partially or wholly,) the question is where, at what point, has the excessive exercise of the power been manifested, and, at what limit shall the Court plant itself to arrest the transgression ? The thing is impracticable, unless at the hazard of a capricious power in the Court far more dangerous and far more intolerable than that' which it seeks to put down.
    Is it certain that the power reserved in the settlement, in .all its plenitude, was against the real intention of Baker, any more than it was against that of Mrs. Baker ? Events have been against him; but who knows what hopes he may have entertained, that his kindness and assiduity might be rewarded with appointments in his favor, as liberal and as irrevocable as he could desire, or the settled property afford?
    Another objection is, that the reservation of a power so ample as this, by a married woman, is.against public policy, by furnishing her the power to predominate over her husband, who, by law, should be the master and not the slave of the wife.
    This is a Court, and not a legislative body. As the law is, so it must be administered. Is it a new thing in law that a femme sole about to marry should reserve the entire control or enjoyment of her whole property? If I had the personal privilege of settlingthe lawandthe policy of society, it should be so in all cases by a general enactment to that effect. But as the law is, a woman may make such a contract. It is not disputed by counsel that a woman may secure the enjoyment of her whole property to herself, but the control of it is what is obiected to. But is it not the familiar law of England, that the securing of a separate estate to herself by a married woman, gives her the control of it as if she were a femme sole ? and was it ever surmised that the reservation was void, as against policy or morality ?
    Then, I must declare the deeds of appointment sustained by the marriage settlement, and direct that the trustees of the settlement do hold accordingly; and it is so decreed.
    It is also decreed, that the trustee, Roux, according to his request, be removed from his trust; and that he account for his adminisrration of it, and deliver up the trust estate in his hands, and the income and profits which have accrued since the dates of the deeds of appointment, respectively, to his co-trustee, Daniel Jenkins, to be held by him for the several persons entitled.
    
      That the said Roux do pay the costs of the suit instituted by him, by his bill filed the 7th of August, 1845, and that all other costs be paid out of the funds of the settled and appointed estates, considered as a common fund.
    That Roux and Baker, and their agents, be perpetually enjoined and restrained from interfering -with the possession or management of the settled or appointed estates; and that the injunction heretofore granted against Thomas B. and Saxby Chaplin, and Daniel Jenkins, be dissolved.
    And that the parties be at liberty to apply for any further order that may be necessary.
    R. L. Baker appealed from the decree of his Honor, Chancellor Johnston, in the above cases, and moved the Court of Appeals to reverse the same, on the following grounds:
    1st. That the execution of the power by the wife, in the appointment of the whole estate to other uses, ought to be set aside; because it is inconsistent with, and repugnant to, the leading clause of the deed, which provides that the husband shall receive the profits of the whole settled estate, for the joint use and maintenance of himself and wife.
    2d. That the execution of the settlement with clauses not only unusual, but inconsistent with the assurances held out to the husband, was an advantage taken of his confidence; and he is entitled to be relieved from so much of the said settlement, on the ground that the same was obtained by surprise.
    3d. That the reservation of a power to the wife, to revoke all the uses that fell within the scope of the marriage consideration, and to declare new uses foreign from the uses of the marriage, is inconsistent with the policy of the law, and the duties that the parties, by entering into marriage, contracted with each other.
    4th. That the appointment of the whole estate to other uses than the uses of the marriage, whereby the means to which the husband looked for supporting his wife, are taken away, while the duty of maintaining her remains, is a fraud upon his marital rights, and falls under the condemnation of an illegal contract.
    Hutson, Colcock, Petigru, solicitors for Baker.
    Thomas B. Chaplin and Saxby Chaplin appealed from the decree of his Honor Chancellor Johnston, made in the above four cases, and moved to modify it at the next sitting of the Court of Appeals, in Charleston, on the following ground:
    Because the decree orders all costs, except the costs on the bill filed by the'trustee, Roux, to be paid from the appointed property; whereas, it is submitted that, under the circumstances,’the costs ought to he paid hy Baker and Roux.
    Treville, appellants’ solicitor.
    
      
       The said Thomas B. and Saxby Chaplin are sons of Mrs. Field by a formed marriage.
    
   Curia, per Harper, Ch.

This Court concurs in the decree of the Court below, so far as respects the grounds of fraud and mistake; The reasoning of the Chancellor, upon the evidence, is entirely conclusive, that the charge (that the clause in question was interpolated, in the second draft of the settlement,) was without foundation. This constituted the fraud charged.

The law in relation to the subject of mistake is very clearly and justly explained by the Chancellor. The ground of surprise, as distinguished from mistake, taken in argument, I understand to be this, that the complainant in the third case stated, consented that the settlement should be drawn according to the wishes and instructions of Mrs. Field, the intended wife, on the previous assurance that he would be properly provided for. If he had received such assurance, in these terms, it would hardly be practicable for the Court to say what would have been a proper provision, and reform the settlement so as to give it, or set it aside for the want of it. The expression testified to, by Mrs. Toomer, that “she intended to make Baker comfortable,” is liable, in a higher degree, to the same objection. Nor does it appear that this expression was ever communicated to Baker, so that he may be supposed to have executed the deed on the faith of it. The only specific representation which was made to him, appears to have been that testified to by Mr. Memminger, that he told him of the provision made for him, in case of his surviving. This representation was, of course, true; and though the expectation it may have raised may have been, in some sense, disappointed, yet he knew that it was subject to be disappointed.

The most material question relates to the construction of the deed of settlement, as suggested by Baker’s first ground of appeal. I say suggested, because it seems to me that the true views, by which the case is to be decided, were not brought to the notice of the Chancellor helow, nor are distinctly set forth in the grounds of appeal.

There is no question with respect 'to the rule contended for, that if there be different clauses in a deed, so entirely repugnant that they cannot stand together, the first clause must prevail. ■ But if they be not so utterly irreconcilable, the Court must, if possible, make such construction as will give each its appropriate effect. And, for this purpose, it is proper to collate the various provisions of the entire instrument, for the purpose of ascertaining whether one of the conflicting clauses was not intended to have a meaning different from that which its terms more obviously import. The first clause of this instrument, as quoted in the decree, is that the trustees shall "“permit Baker to receive the rents, issues and profits, for the joint maintenance .of- himself and wife, during their joint lives.” This is the grant of a life estate, explicit and unequivocal. The second is, “ that in case the said Isabella C. Field shall be minded to dispose of any portion of the said premises, in any manner whatever, then the said trustees shall hold, convey, order and assign the same to and for such person or persons, upon such uses, and subject to such limitations and conditions, as the said Isabella C. Field shall, from time to time, in her lifetime, by deed or any other instrument in writing, executed by her, in the presence of two or more witnesses, or by her last will or testament, duly executed, order, diréct, limit or appoint.” This also seems, on its face, sufficiently clear and unequivocal, that the wife may, at any time, make any disposition of the whole or any part of the property, whether it be to take effect in prccsenti or in futuro. Here is an apparent repugnancy.

There appears to me to be two methods of construing these clauses, so that each may have an effect. The first is, that the life estate is given conditionally, subject to be defeated and divested at any time during its continuance, by the act of the wife. This would constitute what is called a conditional limitation or springing usey in favor of the donees, abridging the previous estate. The other is, to regard the second clause as giving the wife power to make any disposition subject to the joint estate for life, and to take effect after its termination; thus constituting a remainder expectant on that termination.

I am of opinion that the latter construction is the true one. As observed in argument, there could be no question, if the power to dispose were only by will. This would only take effect after her death, and would be a remainder to take effect at the termination of the joint life estate, if her husband should survive her; or at her own death, if she should be the survivor. The will would be revocable, and would not interfere with the limitation to her, in fee, in the event of her surviving. But she is also empowered to dispose by deed. In general, a deed is understood to transfer the present title and right of possession; but by no means uniformly so. A deed is not revocable, and by the deeds executed in this case, she has conveyed every thing which she had the power to convey, after the termination of the joint estate, whether she survived or not; and has exercised it: this makes a vested remainder. Now, it need hardly be said that a vested remainder may be transferred by deed, conveying the present legal title, though not the present right of possession. It is also well settled, that any equitable interest or contingency, whether depending on a conditional limitation, springing use, or executory devise — any thing short of a mere possibility— may be assigned, and this assignment may be by deed. The power, of appointment, whether by deed or will, most commonly contemplates a disposition to take effect in futuro. If by no means follows, then, that the power to give by deed, under the settlement in question, necessarily implies a power to transfer the present usufructuary interest.

I infer that it was not so intended; first, from the provision of the deed, that in the event of any attempt of creditors to make the property liable for the debts of the husband, the income and profits shall be paid to the separate use of the wife. If the power of the wife, under the second clause quoted, were construed in the utmost latitude of which terms are capable, the wife might, at any time, direct the income and profits to be paid to her separate use. Or she might sell the whole or any part of the property, and dispose of the money as she thought proper. If such were her powers, the provision referred to was superfluous.

The construction contended for seems to me to be incompatible with the subsequent clause of the deed, providing “ that in case the said Robert L. Baker and Isabella C. Field, during their joint lives, shall be desirous of selling or disposing of any portion of the property herein before described, or making any change in the same, that then it shall and may be lawful for” the trustees, &c. “upon the assent of the said Robert L. Baker and Isabella C. Field being signified thereto in writing, to sell and dispose of any part of the said property,” &c. provided the proceeds he vested to the uses of the settlement, on such security as the husband and wife may approve. If the consent of both husband and wife were required to sell or make any change in the property, the wife alone could not have the unqualified power of disposition contended for.

It is proper for the Court, collating all the provisions of an instrument, for the purpose of giving it construction, if there be any thing ambiguous, to make such construction as will give the whole a reasonable effect. It should incline against any construction which would operate in an unusual manner, harshly and injuriously to any party, and in favor of such as seems most conformable to the general purposes for which similar instruments are executed. It is also a rule, that if there should be an ambiguity, the construction must be most strongly against the grantor.

The construction contended for, on the part of the wife, would certainly operate very harshly upon the husband. It is agreed, in the pleadings, that the intended husband, who was a young man, was entirely without property; the large property settled belonged to the wife, who was advanced in years. She must be regarded as the grantor. Under such circumstances, it was reasonable to expect that some provision should be made for the support of the husband as well as the wife. The object of marriage settlements, in general, is to provide for the support of the parties, and also for children, if any there should be. But upon the construction contended for, all these purposes might be defeated. The husband might be left in utter poverty, while he would still be liable for the wife’s debts and maintenance. (I speak on legal principles, and however improbable it may be that the husband, in the present instance, should be able to answer such demands, he might be harrassed by them.) It puts it in the power of an indiscreet wife to leave herself without the means of subsistence; as it seems the wife in the present instance has attempted to do; and children of the marriage, (always considered possible,) might be left unprovided for.

It may be said that the husband is in no worse condition than in the common case where the property of the wife is settled to her sole and separate use. But in such case the husband knows what he has to depend upon. It is as if he had married a woman without property. He knows that he has no claim on the wife’s property for his support, and could not. have been induced to enter into the marriage with that expectation. Here such expectation was held out, and it Avould be hard and unreasonable that it should be disappointed.

Much of the argument addressed to the Court below, on the part of the husband, was. to this effect; supposing the wife to have the power to appoint so as to take effect in pree,senii, she should be restrained from the excessive execution of that power. She might make a reasonable provision for the children of her former marriage, or for other purposes; but not leave her husband and herself utterly destitute. But it is plain, that if she possesses this discretion, the Court cannot control her in the exercise of it. Who shall say what shall be a reasonable provision for children, according to their circumstances, or for what objects she might properly provide 1 This latitude of discretion would involve the Court in greater embarrassment and uncertainty than the doctrine of illusory .appointments which has been so much complained of.

But the construction I have adopted will operate the natural and reasonable restraint on the wife’s power of disposition, if a similar case should occur, which seems to be required. Having power to appoint after a joint life estate, the wife will, in general, take care not to leave herself pennyless and dependent, in the event of her being the survivor. It will be a security, too, for a proper provision for the husband, in the event of his surviving ; for as the wife may be the survivor, she cannot leave the husband destitute, without running the risk of leaving herself so. It is true she has done that very thing in the present case. But this doubtless arose from her misconstruction of the settlement. Having separated from her husband in some resentment or disgust, it is probable that she made the disposition which she did, more to annoy and injure him, than out of kindness to her children. To gratify these odia conjugalia, she may have determined to leave herself dependent on her children, trusting to their natural affection, and their gratitude for the benefit which she had conferred, to make a liberal provision for her. But it is in no degree probable that she would have made such disposition, if she had been aware that her husband would receive the income of the estate, during the continuance of her life. The children of the former marriage, it appears, were already well provided for and in good circumstances; but if they had been needy, the credit afforded them by an estate secured on a future, and, probably, not distant event, would have availed for their present necessities. There are other considerations which would incline us to the conclusion we have adopted, but it is not necessary to consider them in detail.

The construction we have given to the clauses in question, .seems to us to be the more obvious and reasonable one. But if they are capable of such construction, we are bound to make it. As I have said, the first construction suggested, that which is contended for on the part of the wife, would constitute a conditional limitation or raise a springing use. It is hardly necessary to refer to authority for law so familiar as that which has been so emphatically laid down with regard to executory devises — that if there ever existed a rule respecting executory devises which had uniformly prevailed, without any exception to the contrary, it was that laid down by Lord Hale in Purejoy v. Rogers, 2 Saund. 380, that where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed an executory devise, but a contingent remainder only, and not otherwise; still more if it can be construed a vested remainder. It is equally familiar, that conditional limitations and springing uses are to be governed by the rules which apply to executory devises. Fearne, Ex. Dec. & Cont. Rem. 440, and Butler’s note to Fearne, 382, n. a. 3. The case of Carwardine v. Carwardine, Fearne, 388, was one in which a springing use under a deed of marriage settlement was contended for, and the case was decided upon the rules applicable to executory devises.

' The general reason is, that the remainder was good at common law; but executory devises and springing uses, allowed as an indulgence to men’s last wills or the exigencies of a family, were in derogation of the common law, and not to be allowed but in cases of necessity.

From the view which the court has taken, the circumstances do not arise under which the trustee, Roux, asks to be discharged,from his trust, and the order for his discharge is rescinded.

The court is also of opinion that the costs of the suit of Roux, directed by the Chancellor to be paid by him, should be paid by defendant, Baker, out of the profits of the trust estate. As he was not a party to the first suit of Roux, it might seem irregular to direct him to pay these costs; but he was a party to the supplementary bill, which was a continuation of 'the same suit, and adopts and insists upon all the grounds which Roux had taken on his behalf.

It is directed accordingly.

It is also ordered and decreed, that the trustees to the' settlement pay to the said Robert ■ L. Baker the income and profits of the trust estate, during the joint lives of himself and his wife; and that the said Thomas B. and Saxby Chaplin, mentioned in the proceedings, be enjoined from interfering with the possession or management of the estate, during the continuance of the said joint lives. In other respects, the decree of the Chancellor is affirmed.

Decree reformed.  