
    *Lee and Wife v. Stuart and Others.
    March, 1830.
    (Absent Cabell and Coalter, J.)
    Marriage Settlements — Setting Aside — Infancy of Wife. —A deed of marriage settlement is made before marriage, between infant female and her guardian, the intended husband, and trustees; whereby her real' estate is settled on her and her children &c. and husband covenants, that he will, when after required, execute any and every further conveyance proper for more effectually settling and assuring the subject to the uses declared by the deed; husband and wife exhibit bill in chancery, praying that this settlement be set aside, on the ground of the infancy of the wife at the time it was executed; and the wife, on a privy examination directed by the chancellor, declares that she had freely and voluntarily joined in the bill: Held, whether the infant feme were bound by the deed or not, the husband was bound by his covenant, and equity will not aid him to avoid it; and bill dismissed.
    Guardian and Ward — Accounting and Settlement— Overpayment to Ward — Effect—Case at Bar. — s. being second husband of M., and guardian of her infant daughters by first husband; and M. having claim to dower of lands of first husband, descended her infant daughters, over and above provision made for her by first husband’s will; S., continually during his wife’s life and after her death, carries the whole profits of the lands descended, to the credit of his wards, and finally settles his accounts, allows them credit for the whole profits, and 'pays them the balance: one of the wards being married, a bill is filed by her husband and her, praying to open, surcharge and falsify the accounts previously settled: and then S. claims as against them, credit for one third of the profits, accrued during his wife’s life, as belonging to her in right of dower: Held, that as S. accounted for and paid these profits, with full knowledge of his right, or at least of the facts out of which his right arose, he cannot now recover them back.
    Daniel M’Carty, late of Westmoreland, died in the year 1800, having made a will, and leaving his wife Margaret, and two infant daughters, Anne and Elizabeth, him surviving. His will was almost wholly confined to the purpose of making a provision for his wife, out of his real and personal estate, giving her the personal in absolute property, and the real for life. The provision was a large one in proportion to his estate, but it was not expressed to be in lieu of dower. He made no express bequest or devise of the residue of his estate, to his children: but the will was concluded with this limitation: “Should I have no child legitimate, to arrive to lawful age or marry, I give all my property, real and personal, to my said wife Margaret.”
    *The testator’s widow obtained administration of his estate with the will annexed, in the county court of West-moreland. In 1802, she married Richard Stuart, upon whom (of course) the administration devolved, and who was afterwards appointed by the same court, guardian of his two infant step daughters, Anne and Elizabeth M’Carty. Immediately after Stuart’s marriage with Mrs. M’Carty, he severed that portion of her first husband’s-estate, which was specifically devised and bequeathed to her by his will, from the residue thereof, which, thenceforth during his wife’s life, and afterwards till the termination of his guardianship, he considered, or at least treated, as the property of his-wards, carrying all the profits thereof to-their credit.
    In 1817, Anne M’Carty intermarried with. Henry Dee, she being still an infant: and by deed of marriage settlement, made before-the marriage, and dated the 29th March 1817, between her with Stuart her guardian, of the first part, William S. Jett, and M’JKenzie Beverley, trustees, of the second, part, and Henry Dee, the intended husband, of the third part, (reciting the intended marriage, and that the settlement was made by the advice and with the approbation of' the guardian) the said Anne, in consideration of the intended marriage, and of one dollar paid her by the trustees, conveyed to Jett and Beverley, and to the survivor of' them, all the lands and slaves whereof she was seized and possessed in her own right; upon trust, to hold the same to her own use-till the marriage; and after the marriage, to the use of the husband and wife during their joint lives; and from and after the death of either, to the use of the survivor for life; and from and after the death of the survivor, to the use of any child or children or descendants of the wife by Dee or any future husband, such descendants to take per stirpes; and in default of such children or descendants, to the use of such person or persons as the wife should, by deed or will, notwithstanding her cover-ture, direct and appoint; and, in default of such appointment, to the use of such person or persons as should be her heirs, ^according to the existing statute of descents in Virginia. And Dee, the intended husband, covenanted with the trustees, that he would at any time after, upon their reasonable request, make and execute, or procure to be made and executed, any and every other deed or con-ve3rance, for the more effectually conveying, assuring and confirming the subject to the trustees, and settling and limiting the same to the uses before expressed. And he .covenanted with the trustees, and Stuart, the guardian of his intended wife, that it should be lawful for her notwithstanding her cov-erture with him, to execute the power of appointment in her vested, by deed or will, as before provided, in favor of any person she should think proper, without any hindrance, denial or molestation from Dee and his heirs, and that he and they would permit her appointment to be carried into effect.
    The marriage was, soon after, celebrated. And in the course of the same year (1817), Elizabeth M’Carty made choice of Dee, now her brother-in-law, for her guardian, in the county court of King George: and he was, accordingly, appointed her guardian by that court. In the course of the same year also, commissioners were appointed by the county court of Westmore-land, to settle Stuart’s accounts of administration of the testator Daniel M’Carty’s estate, and of his guardianship of his wards Anne and Elizabeth M’Carty: and in November 1817, the accounts were audited and settled by the commissioners, in the presence of Dee, and then reported to the county court, where they were received without exception, and ordered to be re-corded. In these accounts, Stuart credited his wards with all the profits that had accrued on all the estate of their father, except that which was specifically devised and bequeathed by his will to his wife Margaret, afterwards the wife of Stuart. And the accounts shewed a balance of £3627. 13. 2. due to Mrs. Dee, at the time of her marriage, reduced by payments to Dee since the marriage, to ¿1197. 17. 0. ; and a balance due to Elizabeth M’Carty, at the date of the report, of ^3479. 13. 10. Stuart forthwith paid Dee the sum due to himself in x'right of his wife; and paid him also, as guardian of Elizabeth, the whole balance due to her: and Dee, in his own right and as guardian of Elizabeth, gave him a complete discharge.
    In 1822, Dee and wife exhibited a bill in the ■superiour court of chancery of Fredericks-burg, against Stuart (the former guardian of Mrs. Dee and her sister Elizabeth), Elizabeth M’Carty, and Jett and Beverley the trustees; the two principal objects of which, .and the only objects which it is necessary to state, were, 1. to open Stuart’s accounts settled and reported by the commissioners of the county court in 1817, and to correct, surcharge and falsify them; and 2. to annul and avoid the marriage settlement between Dee and wife, in respect to the real estate thereby conveyed and settled, upon the ground, that it was executed by the wife, the grantor, while she was an infant, and therefore incapable of making any such conveyance or settlement of real estate, «ven with the concurrence of her guardian, and that, as there was no issue of the marriage, the husband and wife were the only persons in existence, interested in the settlement, and they both desired to have it annulled.
    Stuart, in his answer, leaving the question concerning the marriage settlement to the court, denied all the allegations surcharging and falsifying his accounts as settled in 1817, and shewed that the commissioners had committed errors of addition to his prejudice, to the amount of above ^’700. And he insisted on his part, that these errors of addition should be corrected; and further, that, as the specific bequests and devises, made by Daniel M’Ca,rt3T to his wife, were not expressed to be in lieu of dower, she was entitled to one third of the residue of his lands and slaves for life, and therefore that he, her second husband, was entitled to one third of the profits thereof during her life; but in the accounts of 1817, he had carried the whole of the profits to the credit of his wards; and now he claimed credit (as against Dee and wife only, not against Elizabeth M’Carty) or his wife’s third of the profits of the lands and slaves.
    *There was no undue influence ex-1 ercised by Stuart, or any other party, to procure the execution of the marriage settlement: the transaction was perfectly fair in all respects.
    The chancellor, on the motion of the plaintiffs, issued a commission to two justices of the peace of the county of Washington in the district of Columbia, where Dee and wife resided, to examine Mrs. Dee, privily and apart from her husband, to explain to her the nature and object of the bill, and to ascertain and certify to the court, whether she had freely and voluntarily, without his persuasion or coercion, consented to join with him in exhibiting the bill to the court, and whether she yet wished not to retract such consent. The justices certified, that’ they had executed the commission in the manner therein prescribed ; and that Mrs. Dee acknowledged to them, that she had freely and voluntarily, without persuasion or coercion of her husband, consented to join with him in exhibiting the bill, and that she had no wish to retract such consent.
    The chancellor, nevertheless, upon the hearing, dismissed the bill, so far as the same sought to annul the marriage settlement as to the lands thereby conveyed and settled: and he referred Stuart’s account of administration of Daniel M’Carty’s estate, and of his guardianship of Anne and Elizabeth M’Carty, settled by the commissioners in 1817, to a commissioner of the court, to be by him stated in regular form, with permission to either party to surcharge and falsify.
    Dee and wife appealed from the decree to this court; where the cause was argued by Harrison and Deigh for the appellants, and Stanard for the appellees. The argument turned on two points:
    I. It was argued for the appellants, that a deed of marriage settlement of lands, made by an infant grantor, was of no binding effect whatever on the infant. Caruthers v. Carnthers, 4 Bro. C. C. 500; Clough v. Clough, 5 Ves. 717. The consent and approbation of the infant’s guardian, and *his joining in the deed, did not help the case, since the powers and trust of a guardian extended not to the execution of any such instrument. And, they said, Mrs. Dee’s assent to the exhibition of this bill to annul the deed of marriage settlement as to the real subject, and her concurrence with her husband therein, having been ascertained by a privy examination under a commission issued by the chancellor, with all the solemnity prescribed and required by the law of Virginia, to ascertain the assent of a feme covert to a deed of conveyance, by husband and wife, of the wife’s inheritance; that proceeding placed the case in the same situation, to all substantial purposes, as if the coverture had determined, and Mrs. Dee was sui juris, asking the court to annul the settlement.
    Stanard, contra,
    said, the question was not whether the court may not, hereafter, when Mrs. Dee’s coverture shall have determined, entertain a bill on her behalf, to set aside this marriage settlement of her real estate, on account of the disability of infancy she lay under at the time she executed it? but, whether the husband and wife, during the coverture, in other words, whether the husband, in the name of his wife, while she remains under a disability equal to that of infancy, shall be entertained to impeach the validity of the settlement, on the mere ground that the wife was disabled by reason of infancy to execute such a deed? And, he maintained, there was no reason, and no authority, to support such a bill as this; for if the wife was disabled by infancy to execute the settlement, she was equally disabled by coverture to annul or avoid it; and whether the settlement were binding on the wife or not, the covenants contained in it were binding on the husband. The bill was, in effect, an application to the court, to discharge the husband from the obligation of his own covenants contained in the deed.
    II. Stanard contended for the appellee, that the_ property devised and bequeathed by the will of Daniel M’Carty to his wife (afterwards the wife of Stuart) not being declared to be in lieu of dower, the wife had not only a right under *the will to the property so devised and bequeathed to her, but to her dower of the residue of the testator’s lands; that, consequently, her second husband, Stuart, had a right to one third of the rents of the residue.
    It was answered, that admitting the specific and ample provision made by the will of M’Carty for his wife, did not bar her claim to dower of the residue of his lands, still Stuart could not now maintain his claim to the profits of the dower, accrued during his wife’s life. For, with full knowledge of all the facts on which his claim to one third of the profits rested, he had carried the whole profits to the credit of his wards, and had not only accounted for but had actually paid them the amount. If he was then aware of the legal right to one third of these profits which he now asserts, he abandoned it by design, and voluntarily paid the money to his wards. If he was not aware of this legal right, yet he was aware of all the facts out of which the right arose; he paid the money to his wards, through a mistake, not of the facts, but of the law; and he was not entitled to recover it back. Brisbane v. Dacres, 5 Taunt. 144; 1 Com. Daw Rep. 43, where all the cases on this point are collected.,
    
      
      Marriage Settlements — Antenuptial.—On this subject, see monographic note on “Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
      Ex Parte Settlement — Bill to Surcharge — What It must Specify. — A bill to surcharge and falsify an ets parte settlement must specify the particulars wherein it is supposed to be erroneous. And if the answer to the bill discloses nothing improper jn the account, and the complainant exhibits no evidence to sustain his allegations, the bill should be dismissed. Radford v. Fowlkes, 85 Va. 846, 8 S. E. Rep. 817, quoting from 4 Min. Inst. (3d Ed.) 1486, and citing, in addition, Wyllie v. Venable, 4 Munf. 369; Lee v. Stuart, 2 Leigh 76; Garrett v. Carr, 3 Leigh 407; Shugart v. Thompson, 10 Leigh 443-4; Corbin v. Mills, 19 Gratt. 466. „
      „ But while the plaintiff must specify the items of surcharge and falsification, it is competent for him to show error upon the face of the account. Note to Backhouse v. Jett, 1 Brock. 500, 2 Fed. Gas. 322, case 711.
    
   GREEN, L,

delivered the opinion of the court. The objections alleged in the bill against Stuart’s guardian’s and administration account, are wholy unfounded. It is not surcharged or falsified as to a single item: there is, perhaps, error in it prejudicial to Elizabeth M’Carty, which she does not complain of, and a trivial error in the computation of interest prejudicial to Stuart: but there are no errors prejudicial to Lee and wife. According to the settled doctrine of this court, they have no right to open the account. But there is, on the face of the accounts, an error in addition, prejudicial to Stuart, to- the amount of j£700 or ^800, which ought to be corrected; and there is a library belonging to M’Carty’s estate, which is 3'et to be accounted for to his distributees; and the case should be sent to a commissioner, *only for the purpose of correcting the error in addition, and having an account of the library.

There is no shadow of ground, upon which a court of equity can set aside or declare the marriage settlement void, or lend its aid to assist the appellants in attaining their object in this respect. Lee was a party to the deed, and is bound by it; and no fraud or imposition on him being suggested, no court can, under any pretence, relieve him from the obligation of it. He covenanted with the trustees, to execute any further conveyance, and otherwise to give full effect to the provisions of the settlement. The object of the present proceeding is to procure the aid of the court to enable him to violate that covenant. For the only purpose and effect of setting aside the deed of settlement, would be to enable his wife to dispose of the property for his benefit, or according to his pleasure; since she could make no disposition of it without his concurrence. So far from a court of equity assisting him to frustrate the settlement, it ought to interfere, if necessary, to prevent him from assisting her in defeating it. Durnford v. Lane, 1 Bro. C. C. 106; Milner v. Harewood, 18 Ves. 279.

Nor can Stuart reclaim the proportions of the rents of the real estate of M’Carty, which he has passed to the credit of his wards, accounted for and paid, and which he now claims on account of his wife’s right to dower. If she ever had such a right, the1 legal title is gone by her death, and nothing could be claimed at law on that account; the third of the rents and profits accruing during her life could only have been claimed after her death, in a court of equity. And Stuart, with a knowledge of this equity if it existed, or at least of all the facts upon which it arose, has deliberately abandoned it by his own acts.

Decree reversed, and corrected, but at the costs of the appellants, the appellees being the parties substantially prevailing.  