
    Johnson, Trustee, against Yates’ Devisees, &c.
    
      June, 18, 1839.
    Statement of the case.
    Chancrey.
    From the Circuit Court for Fayette County.
    [Mr. M. C. Johnson and Mr. Owsley for appellant: Mr. Wooley and Mr. Wiekliffe for appellees.]
   Judge Marshall

delivered the Opinion of the Court.

In June, 1813, Michael Yates executed a deed to Richard Chiles, in which, reciting that he had agreed to make a competent settlement on his wife, Molly Yates, in consideration of a considerable property brought to him by her—he, in consideration thereof, and of love and affection for his wife, and of one dollar paid by Chiles, conveys to Chiles, several negroes and various articles of personal property : “to have and to hold the said slaves and their increase, and all said property and estate to him, the said Chiles, and his heirs forever; to the use, intent and purpose following, to wit: To be held, possessed and enjoyed to the use of said Molly Yates, during life, and with power and to the use of such person or persons as she shall by last will and testament, or other deed in writing,” (to take effect after her death,) “appoint, and in default of her appointment, to the heirs of said Molly forever.”

Before the 23d day of December, 1825, a part of the trust property had been exchanged by the trustee, with the concurrence of Yates and wife, for other personalties, and another part and the proceeds pf the estate had been given for two adjoining tracts of land, making about eighty five acres, which had been conveyed to Richard Chiles, trustee of Molly Yates, “in trust for the sole and exclusive use of the said Molly Yates, her heirs and assigns forever.” And by deed of the 23d of December, ][825, between the said Chiles and Michael and Molly Yates of the one part, and John Johnson of the other part, the party of the first part, in consideration of the foregoing facts, which are briefly referred to, and of five shillings paid to them by Johnson, bargained, sold and ponveyed so much of the original trust estate as remained, and the personalty which had been substituted for it (the various articles of which are enumerated,) and also the two tracts of land which had been conveyed to Chiles as trustee: “to have and to hold the said land, slaves and personal estate, with the appurtenances unto him, the said Johnson, his heirs &c. for ever. In trust, however, that the said Johnson will permit the said Molly Yates, during her life, to have, use, occupy, possess and enjoy, the estate so conveyed, with the increase thereof, to her own separate use; and to receive and enjoy, as aforesaid, the profits thereof, in case of renting or hiring, and also to permit the said Michael, during his life, in the event that he survive the said Molly, to use, possess and enjoy the said estate, or the proceeds thereof, during his life;” and power was thereby expressly ‘‘reserved to the said Molly Yates, to dispose of the whole or any part of the said estate remaining after the death of herself and husband, in any manner that she may choose, by will or other instrument of writing, and in the event of said Yates and wife dying without such disposition, then the said estate to ]pass in fee simple to her right heirs,” &c. And Johnson covenants to perform the trust, and to convey the estate to whomsoever the said Molly, by will or other instrument in writing, may designate, to take effect after the deaths of herself and husband.

About the end of the year 1833, Molly Yates died, after having duly executed a writing in the nature of a last will and testament, which, being contested by Johnson, was admitted to record. By that will, she disposes of the whole estate, by specific and other devises and legacies, to take effect immediately upon her death, without making any other provision for her husband, than by directing that the land shall be rented out, and the rent retained in the hands of her executors, to be paid to him, from time to time, as they may judge it to be right for his support.

Within a few days after the will was admitted to record, (in June, 1834,) Johnson, the trustee, filed this bill against the executor, Richard Chiles, and all the devisees and heirs of Molly Yates. And, expressing his belief that the instrument purporting to be the last will of Molly Yates, is void, and that she had no power to make such will, and that to permit it to be carried into execution, as the claimants under it are seeking to do, would be a violation of the rights of those whose trustee he conceives himself to be—he prays the advice of the Court, in virtue of its jurisdiction over trusts, and also prays that the defendants, claiming under the will, and those claiming as heirs, he himself being an heir, may interplead; that the Court will decree to whom, and in what manner, he shall convey; and that, in the mean time, the executor pray be restrained from interfering with the property.

Several of the defendants answered, asserting their rights respectively under, and against, the will, and some of them made their answers cross bills, claiming relief.

On the hearing, the Court decreed, in effect, that the deeds of June, 1813, and December, 1825, and the powers therein created or reserved, were valid; and that, under those deeds and powers, the will of Molly Yates was valid and effectual, except so far as it interfered with and attempted to impair the estate and interest secured to Michael Yates for his life, by the deed of 1825; that it vested titles or interests in remainder in the several appointees, and that the whole will might and should take effect after the death of said Michael.

A conveyance of slave and other personalty to a trustee, for the use of the grantor's wife for life with a power of appointment to her, and in default of an appointment,to her heirs: held (the point not contested,) that she took a life estate only, not the entire fee simple, in the use.

The consideration recited in deed of trust (supra,) is, that the husband (grantor) had agreed to make provision for the wife, who had brought him property upon the marriage; love & affection for her, and one dollar paid by the trustee: held, that marriage &c. was a good and sufficient consideration to uphold the conveyancien favor of the wife; and the consideration of one dol. paid by the trustee, is sufficient to vest the entire legal estate in him, and support the uses to the wife's appointess: the power is, therefore, valid.

This decree is brought up, for our revision, by the appeal of Johnson; and, by the errors assigned, it is questioned on the merits only, These merits depend, first, Upon the question whether Molly Yates had power to dispose of the estate or any part of it; and second, upon the question whether, and how far, the disposition attempted is valid as an execution of the power. Upon these questions, we shall proceed to express our opinions.

It might be made a question whether the deed of 1813 should be construed as giving to Molly Yates a life es-^ate only in the use of the estate conveyed, with a remainder to her heirs (or next of kin,) in default of a valid appointment under the power therein created, or whether gives to her entire fee simple in the use, with a Power appoint the uses after her death, But the only difference between the one and the other of these constructions, seems to be, that under the first, the power would not operate upon the interest of Mrs. Yates, but upon an interest vested in her heirs, or next of kin, and under the last, it would take effect wholly out of her interest. And as we do not perceive that this distinction, as applied to the facts of the present case, can, so far as the personal estate is concerned, have any material effect upon the question as to the validity, either of the power, or of the execution of it; and as, in either case, the interest of the heirs, whether they are to be considered as purchasers from the donor, or as heirs merely of the donee of the power, must alike yield to a valid execution of a valid power, we assume, as probably correct, the first construction, which is the one contended for on the part of the appellant, and not contested On the other side.

On the first argument of this case, the validity of the Power Contained in the deed of 1813, was objected to, on ground that there was no consideration sufficient to support the uses in favor of the appointees of Mrs. Yates, But, as we do not understand this objection to have been seriously urged on the second hearing, we will, Without entering into any discussion of this very abstruse branch of the subject, barley say that, the pecuniary consideration of one, dollar paid by the trustee, having been certainty sufficient to vest the entire legal estate in him, (as it would have been even in a conveyance of land,) would therefore, seem to subject it as entirely to all the uses declared in the deed, as land would be subjected to such uses, by feoffment with livery of seizin, in which case, a consideration was not necessary. Sugden on Powers, 5. And, as in a conveyance by lease and release, the consideration of a pepper corn was sufficient to transfer the possession to the lessee, under the statute of uses and & release might then be well made to him, without, consideration, though uses were declared in it, (same, 6,) it seems to US that, if the Other considerations mentioned in. this deed, which would certainly support a use to Mrs. Yates in fee, be not of themselves sufficient to support the use in favor of her appointees, still, as in virtue of the statute of uses, the pecuniary consideration of one dollar, vests the possession and legal seizin in the trustee, as completely, as a feoffment with livery would vest it in the feoffee, or as the consideration of a pepper corn would in case of a lease, there would seem to be no’ greater necessity for any further consideration to support all the uses, declared in this case, than there would be in the others. And further, that, as the trustee can have no claim id the beneficial use, and as the grantor has received a valuable consideration sufficient, to pass the entire, fee, and has declared, the uses. in fee, if a valuable, consideration, be necessary directly to support the uses to the appointees, or next of kin, of Mrs. Yates, it should be understood in favor of the manifest intention of the parties, and to give full operation to the deed that the consideration of one dollar, which is sufficient to support a use in fee simple, was paid and received as the consideration of all the uses, and should, therefore, operate in support of all, and of the power to appoint them.

The wife-having a life estate in the property (under the deed of the husband) and a general power of appointment- might, in conjunction with the husband & the trustee, by the deed in proper form and duly executed, dispose of the whole or any part of the absulutely. And- The trustee having disposed of part of the trust property, & purchased other property with the proceeds, it was competent for the same parties to dispose of the property thus acquired, by the same deed.

The power then being, in our opinion, valid, we proceed to, enquire into the nature and effect of the subsequent acts by which it may been executed, abridge, or defeated.

As Mrs. Yates had, by the deed of 1813 a life estate in the property there in conveyed, with a general power of appointing the use after her death she might, undoubtedly; in conjunction with her husband and the trusted, if she could not by her own act, dispose of the absolute right in the whole or any part of it, to her own or any other use. Sugd. on Powers, 119.

A conveyance by the husband and wife and the trustee (ut supra) of the same property, on precisely the same trust and to the same uses, as those specified in the conveyance to the first trustee, would only have the effect of changing the trustee, and the power would remain as before. And, if the new conveyance included other property also, it would be subject to the same &c. But-

Such a disposition would have taken effect in part out of her life estate, and in part by means of her power, The deed of December, 1825, having been executed by all these parties, and having been an instrument sufficient, in its form and mode of execution; to operate either as a transfer of her interest in personal property, of as an appointment under a power relating to that property, and the previous disposition made of a part of the property by the trustee, having been by that deed recognized and confirmed, the power, as well as the interest, of Mrs. Yates was extinguished as to the particular property which had been disposed of And whether the personalty received in exchange for that so disposed of, or purchased with the proceeds or profits of the original fund, by the trustee, be considered as coming of course under the same trust, with the Same power attached, of not, it was competent for the parties above named to subject it to the same trust and power, by deed regularly executed. If it was the property of Yates because it was purchased with his wife’s property—which, however, is not admitted—his deed, without her co-operation, was sufficient; if it became her separate property, by reason of the consideration with which it was purchased, she might certainly have disposed of it, and reserved a power of appointing the future use, by the deed referred to, without privy examination; or if it was already subject to the trust and power first created, she might, by the same' deed, dispose of her interest, and execute the power.

Confining our view, for the present, to the personalty; including the slaves, the question is, how far the deed of 1825 executed, modified or extinguished, the existing power over remaining original trust property, and how far it created a new power, or otherwise disposed of newly acquired property.

If, by this deed, the parties of the first part had conveyed the property to Johnson, on precisely the same trusts and to the same uses as in the first deed, and reserving the same power without modification, this conveyance would have been nothing more than a change of the trustee, with the consent of Yates and wife, as to the property already in trust, and subject to the power, and the subjection of additional property to the same trust and power by Yates and wife and the first trustee, if any such additional property was included. And if such a conveyance should be deemed to be a full execution of the power, as it would only be so in consequence of the uses declared and the power reserved, the uses and power in this deed, must themselves be as valid, under this deed, as any uses raised by the execution of the power, could have been, and the power would have subsisted after, substantially as it did before its execution.

A conveyance (ut supra,) for the use of the the wife for life, and to the use of the husband for life, if he survives her, &c. (a use not specified in the first deed,) was, so far, an execution of the power given to the wife; and-no power of revocation being reserved-any subsequent appointment by her, so far as it inteferes with that, thus made to the husband, would be void.

A general power may be executed by different acts, at differernt times. And where there was a partial execution of the power (by the deed of the deed of the hus band and wife and trustee, supra,) and a subsequent execution of it, attempted by the wile by her last will, which does not make the same provision for the husband — held that the latter execution of the power is void, so far, and so far only, as it is in conflict with the former — as the excess can be clearly ascertained; though, if it could not be, the whole (of the last execution) might be deemed void. And the will, by virtue of the power of appointment given by the husband’s deed, passed that portion of the personal property embraced in the trust, which had not been previously disposed of; but the life estate given to the husband by the deed, being so far a valid execution Of the power of appointment, was, to that extent, a previous disposition of the personal property embraced by it, andwhioh is not, andeauls not be, revoked ortakenaway by the Will.

But the deed of 1825 goes farther than has just been supposed, in appointing a use to Michael Yates for life, if he should survive his wife; after which, it reserves to the latter the power of disposing of the whole estate, by will, or other instrument of writing, and provides that, in default of such disposition, it shall pass to her heirs. The appointment, or the creation of a life estate in Micheal Yates, was of course, a partial execution of the power, by which, as no power of revocation is reserved, it was so far exhausted, as that any future appointment must have been inoperative and void, so far as it interfered with his interest. And if what follows is a full execution of the pre-existing power, it is only so because it is a valid reservation of a power equal to or greater than the first.

It is well settled, and is entirely consonant with reason, that a general power maybe executed by different acts, at different times. 4 Kent’s Commentaries, 334. Now, this must be, either because the power is not exhausted by a partial execution, though there be no reservation of further right, or because it is not exhausted though there be such reservation. And in the present case, it would seem necessarily true, that, if this reservation is valid, and operates at all, it preserves or gives the right of disposing of the estate not previously disposed of or that, if it be invalid and inoperative, it is no execution of the power, and therefore leaves it as it was before, except that the partial execution of it in favor of M. Yates, imposed, so far, a restriction upon any future execution of it, or was, so far, an exhaustion of it.

Which of these alternatives is the true one, seems to be of little consequence. For whether the case resulting from a comparison of the deed and will, be considered as a conflict between two acts of the same agent, acting under the same power, or as ah excess committed by the agent in executing a power reserved by herself under the first power and in the first execution of it; as in either alternative, the first act is valid and obligatory and as in either alternative, what might be done after the first act, is plainly and practically distinguishable from what might not be done; so that the extent of the conflict between the two acts under the old power, or the, extent of the excess in the execution of the new power, may be easily and perfectly ascertained, we think that reason and the analogy of similar cases lead to the same conclusion, that the last act is inoperative and void, only to the extent of the conflict or excess, and is valid as to the residue.

This is not a case of the defective execution of a power. The instrument is perfect, and the intention clearly and properly expressed, and the only question is how far it can operate. If the excess could not be ascertained, there might be some reason in saying that, the whole should be deemed void. But where the line is plainly marked, it seems unreasonable that what is rightfully done, should be destroyed by that which is void for want of authority merely.

The case is, that Mrs. Yates, having power to appoint the whole use in fee, after the death of her husband, appoints the whole to take effect at her own death, without regard to the fact that her husband still lived, or to the life interest secured to him.

The cases decided in England, upon the leasing pow-era of tenants for life, and others having limited interests, do not, in our opinion, determine this question; which seems more analagous to a case in which an agent executes, in the name of his principal, an obligation to convey a life estate to A, and afterwards executes a similar obligation for the conveyance of an immediate fee in the same land to B. If the last bond would be enforcible in equity, against the principal, in case the first had never been given, surely neither he, nor his heirs, nor any person claiming under him by title subject to the power, could resist it as being void in toto because of the first bond. They would have no equity against either bond, but the only conflicting equities would be those of the claimants under the two bonds. This case, of the two. bonds, might be varied so as to make the first approach more nearly in effect to the deed of December, 1825; but the result would seem to be the same, that neither the principal, nor his heirs, nor others claiming under him by title subject to the power, could say that the last bond was wholly void, either because it conflicted in part with the first, or because, although it did not exceed the original power, it exceeded the power remaining after the first bond, or reserved in it. And as, in such a case, neither the principal nor those claiming under him by title subject to the power, could claim any interest in the land on account of this conflict or excess; so, in the present case, as both the deed of 1825 and the will of 1833, are in themselves, in all respects sufficient, under the power, to bind the estate which is subject to it, neither the donor of the power, as such, nor the heirs of the donee, whose title is subject to it, can claim any interest in the estate on account of the alleged conflict, or excess, in the execution of the power.

Upon the whole we are of opinion that, the will, or the instrument in the nature of a will, executed by Mrs. Yates, being perfect in its form and mode of execution, is valid, so far as it relates to the personal estate and slaves, as an appointment under her power as then existing, and is obligatory upon her trustee and heirs—except to the extent that it disregards or impairs the interest of Michael Yates, And therefore, that they have no right to complain of the decree of the Circuit Court, so far as it relates to the personal estate. But the question as to the land stands upon different grounds.

An estate cannot pass by an appointment under a power, unless it could have passed by the deed or instrument creating the power: the appointment operates as if it had been inserted in the original deed. So—

In this case, where a husband had conveyed slaves and other personal property in trust, for the use of his wife for life,then to such uses as she should appoint by will or deed in writing, and in default of such appointment, to herh’rs; and the trustee disposed of apart of the property and its profits and, with the proceeds, purchased land which was conveyed to the life in fee; and the afterwards executed a deed (but which she did not acknowledge upon privy examination,) in. Which her husband and the trustee joined,as grantors, & which recognized and sanctioned the disposition of the personal property by which the land was purchased; and which purports to convey the land to a trustee far the use of herself for life, and her husband for life, if he survived her &c. and afterwards made a will, by which she devised the land to the others directly, without regard to the use provided for the husband: held that, as the deed recited and sanctioned the purchased land with a part of the trust property, it is evidence of a valid execution of the power reserved to the wife thus far; as the was convey ed to her by deed in fee, and she could not, during the coverture convey the land, or raise any new power or use upon it, otherwise than by deed duly executed and upon privy examination-the deed so far as it relates to the land, is invalid; and, as a feme covert in this State, cannot devise land by will, unless under a power reserved, the land did not pass by the will, but decended to the heirs of the feme.

The land never belonged to Michael Yates, and was. not included in his deed of 1813. Neither he, nor the, first trustee, Chiles, who held it as trustee, had a right to declare any new uses in it, or to subject it to a new power. The deed of 1825, therefore, as the act of Michael Yates and the trustee, could not change the condition of the land from what it was before. If it was not before subject to the power, it was held in trust for the exclusive use of Mrs. Yates and her heirs. Any power of disposing of the future use, then created, must have operated upon, or had its effect out of, her interest. It must have been a power to dispose of her interest. And, as she had no power by law to dispose of her interest in land without privy examination, but'was actually incapable of doing so, it would be absurd to say, that she could, by her own act, without privy examination, create such a power, either in herself or in another. This would be permitting her to dispose of her interest, in fact, without privy examination, and would be a palpable evasion or violation of the law, not authorized, nor capable of being authorized, by any principle belonging to the particular subject of powers.

It is a familiar principle applicable to the execution of powers, that, the estate cannot pass by appointment under the power, unless it could have been passed by the deed or instrument creating the power, and that the appointment operates as if it had been inserted in the original deed. Subjected to this test, the deed of 1825 did not, and could not, authorize Mrs. Yates to dispose of the land by the will which she afterwards made. And the question is, had she power to do so independently of that deed, or before its exception?

The existence of such a power is contended for, as re-resulting from the fact, that the land had been purchased by the Trustee, with the proceeds or profits of a part of the personal estate included in the deed of 1813, or in exchange for if. This fact is recited in. the deed of 1825, which also recites that, this, exchange or purchase was made by the trustee, with the consent of Mrs, Yates and her husband; and this recital implies, that the conveyances of the land to the trustee, which are the evidences of the purchase, were also consented to; and they thus be. come the evidences of the terms on which the personal property exchanged for the land, was freed from the trust and power to which it was previously subject. As Mrs Yates, by virtue of her interest and power, might, at least with the consent of her husband and the trustee, have made any disposition she pleased of the whole or any part of the original trust property, so as to vest it m herself absolutely, or in another, either without consideration, or upon a consideration, in money or other thing to be paid to her directly, or to any other for her use, or for such uses as she might choose, with or without a reservation of power to herself (Sugden on Powers, 119,) and as the recitals above mentioned, connected with the t deeds to which they refer, are evidence of a disposition of a part of the trust property, for lands to be held in trust for the exclusive use of herself in fee simple, there is neither any necessity, nor indeed any room for implying any further trust or power.

If Mrs. Yates had, by deed, to take effect after her death, appointed the use of the entire trust property to A, and if, moreover, she and her husband, and the trustee had transferred to A, her life interest, and A, in consideration of all this, had conveyed a tract of land to her and her heirs, or to her trustee for her, in fee, without any further use or reservation of power, could she, or her appointees, have claimed, that, though her original power was exhausted by a full execution of it, and no other had been created or reserved, either in the deed executing the power, or in that conveying the land, she still had a power independent of that which her interest in the land gave her? It would be impossible, as it seems to us, to account for the existence of such a power under such circumstances.

The original power being completely exhausted by the transfer of the original estate, and the consideration of that transfer having come to the use of the person who was entitled to it absolutely, there would be no ground left for implying any other use or power than such as was actually reserved in the instruments by which the transacttion was effectuated. The case, as it occured, is not substantially different.

The trust estate is liable to the debts contracte d for the wife, during her life, in pursuance of the trust,

In the case before us, the trust property was probably sold, and the money appropriated to the purchase of the land, which separated the two subjects still more widely than if there had been a direct exchange. Another difference is, that the transfer of the trust property in the case before us, may not have been effected by a formal execution, of the power, But there was an actual transfer with the consent of Yates and wife, and the validity of this transfer, which is confirmed by the deed of 1825, and cannot be denied by those who claim the land, on the ground that it wag purchased by means of the sale or exchange of the personalty, implies an execution and exhaustion of the original power, as to the property thus transferred. And the deed of 1825, although ineffectual to transfer, or to create a power of transferring, the interest of Mrs. Yates in land, is certainly competent, in connection with the deeds conveying the land to her trustee, to prove the terms on which he had transferred or consented to that transfer, of the original estate, and to confirm them.

Under these circumstances, we are of opinion that Mrs. Yates must be considered as having taken the uses of the land, as declared in the deed to Chiles, and without any power, and that, not being competent to raise a power out of and over her own interest in the land, unless by deed, on privy examination, the deed of 1825, for want of such examination, was ineffectual to create the power of disposition therein reserved, over the land, and for the same reason, it was ineffectual to secure Michael Yates the use for life in the land, as is therein attempted to be done. And as a married woman is incompetent to devise lands, unless under a power reserved, it follows that the will of Molly Yates is wholly inoperative, so far as it attempts or purports to dispose of land. And consequently, that the decree rendered by the Circuit Court, is erroneous, in giving any effect to it as an appointment of the uses of the land, and also in giving effect to the deed of 1825, as an appointment of the use of the land to Michael Yates during his life.

It need only that, the trust estate is liable to be added that, the trust estate is liable to the debts incurred for the benefit of Mrs. Yates during her life, and in pursuance of the trust.

October, 10.

The decree of the Circuit Court is reversed, and the cause remanded, with directions to render a decree in conformity with this opinion.

The Opinion, delivered at the Spring Term 1839, was then suspended for furthre consideration, and did Hot become final until the Spring Term, 1840.

Petition for A Re-hearing

[By Mr. E. Wickliffe, Sr.]

In this case, the Court is respectfully solicited to direct a re-hearing of the cause. In making this petition for his client, the counsel for Chiles feels fearful that he will appear troublesome beyond what duty enjoins on him, to the Court, in calling the attention of the Court again to the case which has already undergone two arguments before the Court, and, of course, consumed much of its time. But a careful examination of the case, and of the opinion of the Court, has satisfied him that, it is his duty to lay before the Court, the strong reasons which impel him to ask of this Court, to not only revise their opinion, hut finally, to reject the bill of the complainant altogether.

It is not the intention of this petition, to either question the soundness of the doctrines of law advanced by the Court, or to examine the nice and very elaborated opinions of the counsel on either side, heretofore presented to the Court. Their abstruSeness never had, nor have they now, allowed him to see their application. Indeed, almost every attenuated thread of the finely woven web of the complainant’s counsel, seems to have been brushed from the case by the opinion of the Court, save one, and that I shall attempt to show has Ho' relation to the case, however plausible it may be in theory: I mean so much of the opinion as goes upon the idea, that Mrs. Yates had theretofore exhausted her power.

The Court seem to concede that, under the statute, a feme may convey her estate (when examined, &c.) as though she were feme sole. Indeed, such are the words of the act; and consequently, that the wife, with her huSband, may create a power to appoint by deed or will under her deed, of her own lands. But that the deed of Yates, Johnson and Yates &c. is void under the statute as to the feme, because her privy examination was not recorded before her death: If she was not acting under a power of attorney from her husband legally created, it is unquestionable that the statute declares her deed utterly void. It is a mere act in pays, a mere parol—incapable of confirmation. See Shackleford and Miller. It is weaker than confessions or conversations of the feme, which is evidence to no purpose, against her or any one. See the case of Hicks and Rodgers.

Recitals in deeds are at best secondary evidence, and are only evidence against parties to deeds and privies. Now, a man must surely make a deed before the recitals in a deed shall bind him. But this Court has, as your petitioner humbly conceives, inadvertently decided that though a feme coverl’s deed unrecorded, is utterly void, still that recitals in this void deed, are valid against her, and that both she and her devisees are estopt by them. Will not a reconsideration of this case enable this Court to perceive that this position is not only utterly repugnant to the opinion of the Court, but at war with all the analogies of law. The deed of the feme is not good without a privy examination duly recorded, because until the wife is removed out of the power of the husband, and, by the clerk or justices, is duly admonished, and has had the deed explained to her, she is supposed to act, in the signing even her name, under the control of her husband. To this jealousy of the law, of the power of the husband, or the cunning of the world, you, in one part of the opinion, give full force and fatal effect, and say that the deed of the 23d of December creates no power, because it is no evidence of the deliberate sense of the feme; and yet, to destroy the estate and defeat the wilL, you have decided that a deed, made and executed by and between Chiles, Johnson and Yates, destroys her estate; and that recitals in that deed, which is void as to her, estop her and her devisees to contest the fact, that she ever did in fact her self, or authorize another to do it for her, execute the power to dispose of the property under the deed of 1813, or of any part of it. Take the case as it comes before the Court, and see what lengths the principle of evidence now first let into a court of justice, will go. Chiles, a trustee, and Yates and Johnson wish to defeat the power, and Chiles wants a salvo for his abuse of trust; and they make a deed reciting that he purchased land with the trust property, by the consent of Molly Yates. They duly acknowledge the deed, and show her Signature; and offer this as evidence that Mr. Chiles has acted for her in the trade, but deny that the paper as her deed, has any efficacy Whatever. To further illustrate the danger of the Court’s taking recitations in a void deed, as evidence against a feme, the Court has only to see how this deed was recorded. On the 24th of December, 1825, it is certified to be acknowledged by Yates and wife, and Johnson, but not until the 19th of January, is it proven to be the act and deed of Chiles.

With these remarks, I shall content myself with adding, that, save the recitals, there is not the shadow of evidence that Mrs. Yates in any manner executed, or even attempted to execute, the power, except by will; and these recitals being no evidence of the fact whatever, that the opinion of the Court proceeds upon mistake in supposing the fact proved—that she had executed the power.

But let us revert to the deed of 1813. By that deed, it is expressly limited to a devise, or to a conveyance by deed in writing, and if she appointed by deed, it was not to take effect after her death. Now, may I not ask for the deed? May I not ask that that deed shall, upon its face, not take effect until after her death; and can this be shown or pretended? Surely not. There is nothing in the case that can for a moment raise a thought, much less a presumption, that Molly Yates, by deed Or will; ever attempted to alienate the use in the trust property; while Chiles was trustee. The law so guards the feme covert, that property that passes by parol, is taken from her; that every bargain, conversation, Or acknowledgment, during coverture, can and shall rtot be made into evidence for any purpose; and to the very extreme ei this rule has this Court gone, in the case of Hicks and Rodgers; hence, her written or parol admission, on the principle that she had executed the trust, would be wholly inadmissible. But on this point, Yates and his wife and her trustee, or Yates and Chiles, make a law for themselves. Yates conveys his whole estate to Chiles, to the use of Molly, his wife, for life, and to such as she by will or deed appoint, in fee—the deed to take effect after her death. Yates—or if he had not sense enough in fact to do so, his lawyer—had secured himself from the very evil which now overwhelms him. He provides that the use is first, not to pass by deed or will, in any manner out of his wife’s hands, during her life. If by will, the law restricted its operation; if by deed, however, then he provided a life estate to her and to himself, a support for his life, against her folly or the overreachings of her friends and confidents. This Court has, in the opinion, very properly drawn a distinction between an erroneous execution of a power, and an excessive execution of a power, and established the principle that, in the first case, the execution is wholly void; but in the latter, only voidable for the excess. Thus, if I authorize a man to sell my lands in fee, but in the sale, he warrants the title, the sale as to me is good, but not the warranty. But if I authorize a man to sell my estate after new year, or after my death; or after my son’s death, and he grant it before, the grant is utterly void. These cases are not only law, but given to illustrate the law; and yet the case of Molly Yates is much stronger: she was only able to convey, or exert a volition on the subject, from the power; she was for all purposes whatever, other than to execute the pow er, incompetent; and any deed of hers, to operate instanter, would have been utterly void. In the opinion at least of this petitioner, the law goes on the dread it has of the overreaching and the imbecility of the feme. A deed, according to Barwick’s case, is void as a deed, if it does not take effect instanter; and this doctrine or principle was acted on in the case of Barlow and Hinton. Suppose she had made a deed, appointing absolutely, while a feme sole, would her husband, would she, have been divested of the use—turned out of house and home, and deprived of bread, by either law or chancery? Surely not. And if she had, by deed, declared that, at her death, the estate should pass &c. such deed, according to the opinion of this Court in the case of Barlow and Binton, could be revoked by will, and the estate would pass by the will, and not by the deed.

That Mrs. Yates, under the full persuasion that the land bought would, in all respects, be subject to her will, assented to the change of the property, there is the strongest probability—not only from the recitals, but the condition of the parties; but of this, this Court has no evidence; of the deliberate assent by deed, provided for in Yates’ deed. And no man believes or pretends that there was such deed. On the contrary, all the deeds and the will are referred to by both complainant and defendants, as the only deeds or writing whatever touching the trust estate; and the bill does not even allege, that the change of the personalty was made with the assent, written or parol, of Molly Yates.

From the commencement of this cause, your petitioner-only apprehended difficulty on the question of the resulting trust. He is candid in declaring that, he- did not for a moment suppose that the recital amounted to evidence of an execution, even of a feme sole. But if they did, and the deed were valid, then the question was settled in favor of the will. But if the deed was decided not to be the act and deed of Molly Yates, that then her rights were those, and those alone, secured to her by the deed of 1813, Even in the cases of infants, their confessions or statements while infants, are never taken to destroy their rights; even the answer of a guardian for the infant, to which the infant has sworn, has been held not to bind him when of full age, and permitted to defend; and this where the acts are not void, and where recitals in deeds after full age, acts in pais, or mere words after mature years, are made sometimes to work a confirmation of grants, as was decided by this Court, in the case of Phillips and wife against Green. But a feme’s acts are void; absolutely void, as no t only decided by all English jurists, but recognized by this Court, in the case of Breckenridge and Ormsby. Her deed of confirmation does not ratify or confirm, when feme sole, what she did when covert. But here, not Mrs. Yates’ deed, but the recitals of a deed between Yates and Chiles, are made to estop her, and to divest her and her devisees.

The Court, in taking the recitals, or any other fact in this cause, as evidence against Molly Yates’ devisee, has cited no authority for so doing, and, from its great labor and research, it is presumed that none whatever exists, or the Court would have found it, and when it is the duty of the Court, if possible, to adopt the benign maxim, ut leges magis valeat quam juret, I respectfully ask is it right to substitute the contrary rule, to destroy the estate, rather than save it, and to effect that object, to introduce the dangerous and new evidence or presumptions drawn from the parol or other void acts of femes covert.

Hoping that I have said enough to draw the attention of the Court to, the kind of evidence upon which it has founded its opinion that Molly Yates had executed her power, I will not consume time in endeavoring to satisfy the Court, that the whole of the property is subject to the deed of 1813. And that, upon no principle earthly, pan the complainant be relieved under the deed of trust to him. It should be borne in mind that the deed to Johnson recites, that the deed for one of the tracts of land, to wit: that of Fossel and wife, for forty acres, had not been consummated, and the deed appears not to have been acknowledged until the 24th day of December, 1825; and there are no witnesses whatever to the deed; of course, it is only good from its acknowledgment; especially, as it was for the land of a feme covert.

The deed from Chiles &c. to Johnson was made and executed opt he 23d. That deed, of course, led the use and directed the trust of Fossel’s deed; for although it expressed to be for the use of Molly Yates, yet that use vas such as the deed of the 23d had created in Johnson; for, by the law, the title by the delivery of the deed to Chiles, vested eo instanter in Johnson; so that Chiles, as to this, title, never for one moment, was the trustee of Molly Yates; and surely, under the deed to Johnson, Molly Yates could devise it; nor can the expression of a use variant from the deed of Chiles to Johnson, executed on the 23d, vary or change the rights of Molly Yates; nor can the recitals of Chiles and Yates, on the’23d, be made to recognize the peculiar trusts of Fossel’s deed to Chiles, of the 24th’ and Johnson, being no party to that deed, becomes vested with the estate as his deed vested him, and not as Chiles might have stood vested, had he not made the deed of the 23d.

Again. How can this Court relieve Johnson? By his solemn covenant, he stipulates to convey to whomsoever Molly Yates shall by will appoint. This was the condition upon which he received the estate, He appeared in the County Court, and then in this Court, and contested the will. This Court and the County Court both decide that it is the will of Molly Yates. And can he now deny it? Certainly not. By the terms of his agreement, he is to convey the land, no t to her heir, but her devisees; and yet this Court, against the express covenant of Johnson, directs him not to convey to the devisee. I may be told that the heirs have a right to follow the estate. Be it is so, for the argument. But how? Not in Johnson’s hands, but in that of Chiles, or that of the devisee. And for this purpose the cause is not prepared. The bill has not brought the whole of the heirs before the Court; nor has an affidavit been made that the bill is true, in charging that the complainant does not know the names of the heirs not made parties by their proper names; nor are those heirs styled such, properly before the Court. The law requires that the order shall he published two months successively, not weekly, but daily, if it is a daily paper, The printer only states that he published it weekly, from the 15th of August, 1834, and the order required an appearance on the 24th day of the September Term following. I have not the days of the meeting of the September term, but think it almost impossible that there could have intervened two months from the 15th of August, until the 24th day of the September term; and hence it is that the Court took no order to take the bill for confessed. At all events, I contend that, before the order, however regular, can be noticed here, that the evidence of its execution should have been made in the Court below, and the bill on that, taken for confessed, But that is not done, The complainant then not being in a condition to be relieved, his covenant being express to convey, and the heirs not being before the Court, this Court has acted, in this particular, premature, in decreeing on the question of distribution; but should have dismissed the bill, if the decree below was disturbed. In conclusion — the counsel for the will can but hope, that the Court will see abundant reason for opening their decree, when they take a view of its consequence upon the parties, and when they and all the world must be convinced, at a single blush of the case, that if their decree stand, here is a case that exhibits melancholy evidence that an illiterate female, and illiterate men have had their plain intentions perverted, and their feet caught in a legal net of forms unintelligible to them and the world at large.

Since the days of our republic, the courts have endeavored to enforce the benign rule of carrying out the intention of the parties to a deed or a will, and never to overturn either, unless by the stern mandates of law. Here, every letter and every line shows what the intention of the parties was: of this there is not the shadow of ambiguity.

Yates, an imbecile, made sensible of his condition, conveys his whole estate, in trust, that his wife shall manage it, and finally dispose of it; and that her deed, or her will, alone, shall dispose of the fee. Chiles so covenants, that he will stand seized, And when Chiles takes the land, or a deed for it, he takes it under the deed of 1813; and when he says, to the use of Molly Yates, the law as well as his duty, required that the deed of 1813 should lead the use, Such intention is the honest one; an intention to defeat the deed of 1813, was dishonest: it would have been villainous; and can this Court impute it? Surely not, When the deed of 1825 is made to Johnson, it is expressly stipulated, that Johnson shall, in all respects, carry out the deed of 1813. The deed of 1813 recites, that Johnson is substituted in lieu of Chiles; and the same care is taken; that whatever disposition is made by Molly Yates, of the estate, it shall only be manifested by deed or will. She has made no deed, but made her will, in due and proper form. Is this not stronger evidence of her intention—that she never had before conveyed—than the recitals of the deed of 1825? And I ask, if it is not conclusive that the failure more particularly to express the use in the land bought by Chiles, was the mere inadvertence of Chiles? and whether the humanity and equity of our system does not forbid that a feme shall lose her rights, by the ignorance of either herself, or that of her trustee? Take this case up, as Chancellors generally take up trusts, even where the trustee acts fraudulently, and the case is stripped of all its ambiguity and of all its evils: that is, begin at the root and go to the branches, and poor old Yates will not be unhoused, and trapped in the meshes, or bewildered in the mists, of the law. But, here you have the first act, and the last act, of the parties—all declaring that the deed of 1813 forms the basis of the fabric, and that the power of Molly Yates over the estate remains as it did by the deed of 1813—complete to pass it by deed or will. And I still maintain that intention between parties and privies, is not only the polar star, but the governing principle. That ours is an age of common sense, and not a time to overrule our understandings, and uproot our estates by the works and subtleties of the Jesuits, or polemics of the British school. Their policy is to uphold the heir, and that land shall descend, and not pass to his prejudice. Our policy is, that he who is free to acquire, shall be free to pass estates; and where the Courts can, they will uphold the right to do so; and that neither fiction nor error shall defeat the right.

Here Yates seems to have unbounded confidence in his Wife, in life, and willing to trust her in the article of death. She makes use of the grant during life, for her and his benefit, and makes provision for him by her will. This every man can see and understand. On this will and these deeds, nine hundred and ninety nine common men, out of a thousand, will agree to give Yates a life estate, and to the other devisees, the fee. But from the lore of the Plantagenets, or the Tudors and Stuarts, or the Guelphs, laws are extracted that unhouse Yates, and make him liable for rents, from the moment of his wife’s death; revoke the will as to favorite objects of Yates and wife, and send the fee simple into the hundred named and nameless heirs, known and unknown, which have heritable blood, and can take. This little spec of land is not only to pass from Yates, and the favorite nephew of Molly Yates, who was her agent and friend to improve it, and endear it to her white living, but to become the property of strangers, by being put under the hammer, and the proceeds divided among those unknown to Molly and to Michael Yates, who created, by their joint labor, the capital that raised it; And, Yates is told, that his ignorance, and that of his wife and her trustee, has wrought this mischief upon him, as his only consolation,

May, 30.

R. Wickliffe.

The Petition having been considered, was overruled, with the following remarks by Judge Marshall:—

The deed from Fossel and wife, was executed by Fossel, though not by his wife, before the date of the deed of the 23d of December, 1823, and its form, and terms there fixed. It was in fact executed by the wife, on the 24th day of December, and is referred to in the deed of the 23d, as made, but not consummated, and its terms and effect ate, in our opinion, no more affected by the deed of the 23d of December, than if it had been fully executed before that day; and are as much approved by the said deed of the 23d of December, as those of the other deed conveying land to Chiles, as trustee of Mrs. Yates. For this reason, there was no distinction made between them, in the opinion as rendered.

This statement is made because the facts as to the execution of the second deed, were not particularly stated in the original opinion. The principles decided are left to stand upon the reasons and authority therein presented,

The petition is overruled.  