
    *Fadeley v. Weatherby’s Ex’ors. Same v. Same.
    February, 1837,
    Richmond.
    (Absent Tucker, P.)
    Harriage Settlement — Revocation—What Constitutes —Case at Bar. — By deed of settlement before marriage, the wife’s estate is conveyed to the use of the husband during the joint lives of husband and wife, and thereafter to be at her sole disposal; and the husband’s estate, from and after his death, is conveyed to the use of the wife for her life: after the marriage, the husband and wife agree upon a separation, and that each shall relinquish all claim upon the estate of the other; they separate accordingly, and the husband conveys to the wife’s trustee all his interest in her estate under the deed of settlement; the wife retains possession of the estate and takes the profits until the husband’s death, a period of 14 years, the annual value being greater than that of the husband’s own estate: after the husband’s death, the wife files a bill in chancery against the devisee of his estate, for an account of the rents and profits, which she claims as tenant for life under the marriage settlement: Held, the claim cannot be allowed in equity.
    A deed of marriage settlement, bearing date the 12th of January 1804, was entered into between- Matthew Weatherby of the first part, Jane M’Earland widow of John M’Earland of the second part, and James Crane and Burr Powell of the third part. It recited that a marriage was intended to be had between the said Matthew and Jane, and that the said Jane being possessed of a considerable estate, real and personal, and the said Matthew being entitled to a considerable real estate consisting of houses and lots in and about the town of Leesburg in Loudoun county, it had been agreed, that after the intended marriage had, the said Matthew should receive and enjoy, during the joint lives of himself and his intended wife, the interest and occupation of all the real and personal estate owned by both of *them; but that from and after the decease of such of them as should first die, the estate of the said Jane, real and personal, should be at her sole disposal, and in case she survived the said Matthew, all his estate, real and personal, should be possessed and enjoyed by her during her life, subject however to be disposed of bjr the said Matthew at her death. In pursuance of that agreement, the deed conveyed to the said James Crane, for the consideration of one dollar, all the real and personal estate of the said Jane, upon trust, that from and after the marriage the said trustee should permit the said Matthew, during the joint lives of himself and his said intended wife, to have, receive and enjoy all the interest and profits of the said trust property, for his own use and benefit, “or to sell, transfer and convey, jointljr with the said Jane his wife, any or all the aforesaid property which she the said Jane might sell or dispose of when sole, she consenting to the sale and joining in the conveyance;” and from and after the decease of such of them the said Matthew and Jane as should first die, upon trust that the said trustee should assign and transfer all the said property, or so much as might remain undisposed of, to the said Jane, in case she survived the said Matthew, or if she died before him, then to such persons and in such manner as she, by writing under her hand and seal, attested by three or more credible witnesses, or by her last will and testament in writing, published in the presence of the like number of witnesses, should, notwithstanding her coverture, direct and appoint; to the intent that the said property should not be at the disposal of the said Matthew, or subject to his control, debts or engagements; and in default of such direction and appointment, then the said property to go in equal portions to the nephews and nieces of the said Jane. And in further pursuance of the agreement, the deed conveyed to the said- Burr Powell, for the consideration of one dollar, all the real estate to which the *said Matthew was entitled, consisting of lots and houses in and adjoining the town of Leesburg, upon trust that the said Burr Powell should permit the said Matthew, during his life,.to receive and enjoy the profits of the said property, for his own use and benefit, ‘ ‘and to sell and convey the same jointly with the said Jane his wife, provided she consents to the sale and joins in the conveyance;” and in case the said Matthew survived the said Jane, then upon trust to transfer, and make over all the said lots and houses to him; but if he should die first, then to permit the said Jane to receive and enjoy the profits during her life; and at her death, to transfer and make over the said property to such persons and in such manner as the said Matthew, by writing under his hand and seal, attested by three or more witnesses, or by his last will in writing, published in the presence of the like number of witnesses, should direct or appoint; and in default of such direction, then to the right heirs of the said Matthew. This deed was recorded on the 28th day of May 1804.
    The marriage of the said Matthew and Jane took place, as contemplated in the deed of settlement. And about the end of the year 1821, the said Matthew Weatherby died, having previously made and published his last will, which bears date in October of the last mentioned year, and is attested by three witnesses. The testator devises one of his lots in Leesburg to R. H. Lee for the use of the protestant episcopal church in that town, and devises his other lots and bequeathes all his personal estate to Jacob Fadeley, whom he also appoints executor. The will was recorded in February 1822, and the executor qualified in May follow’ing.
    In 1824, Jane Weatherby the-widow of the testator filed her bill in the superiour court of chancery holden at Winchester, against Fadeley and Lee the devisees aforesaid, and James Crane and Burr Powell the trustees under the deed of settlement, setting forth the execution *of that deed, the provisions thereof, the plaintiff’s marriage with the testator, the death of said testator, and the provisions of his will: charging that the said Jacob Fadeley had rented out all the said houses and lots, and received the rents ever since the testator’s death : and praying that the said Fade-ley might be compelled to account for the said rents before a commissioner of the court, and to pay the amount thereof, with interest, to the plaintiff; and general relief.
    R. H. Lee, James Crane and Burr Powell failed to answer the bill, and as to those defendants it was taken pro confesso.
    Fadeley answered, admitting the marriage settlement, the marriage, the death of Matthew Weatherby, and his will, as set forth in the bill of the plaintiff. And then he proceeded to state, that the said Matthew and the plaintiff, shortly after their intermarriage, found their union to be productive of dissension, and therefore, even so early as the year 1805, agreed upon a separation : and this agreement, by the terms whereof each of the parties was to give up all claim to the estate of the other, and all interest therein, was afterwards actually carried into effect, by the separation of the parties, and by the execution of a deed by the said Matthew, which was exhibited, and prayed to be taken as part of the answer: that the plaintiff and her trustee James Crane gave the said Matthew a solemn pledge to surrender all claim upon his estate, and engaged to execute bond with security that in the event of her surviving him she should claim no part thereof, nor any interest whatsoever therein: and that the said plaintiff remained, thenceforth until the death of the said Matthew, in the unmolested possession of her own estate, receiving and enjoying the profits, which were considerable..
    The deed exhibited with the answer of Fadeley is a conveyance from Matthew Weatherby to James Crane, 'Mated the 30th of June 1808 and recorded February 13, 1809. For the consideration of ;£45. 4. UK- Matthew Weatherby con-vejrs and assigns to Crane “all his right, title, - interest and demand to all property of every sort and description claimed by him the said Matthew Weatherby by title of intermarriage with Jane M’Farland, and under a marriage contract made and entered into with the said Jane on the 12th day of January 1804. ”
    The plaintiff filed a general replication to Fadeley’s answer.
    The agreement of Weatherby and his wife to separate, the terms of that agreement, and the execution thereof, as alleged in the answer, were clearly proved by the evidence in the cause; which, so far as material to the questions considered by this court, is stated in the opinion delivered by judge Brockenbrough.
    On the lith of April 1826 the cause came on to be heard in the superiour court of chancery: whereupon that co.urt, being of opinion that the plaintiff had a life interest in the houses and lots and real estate conveyed in trust by her deceased husband by the deed of marriage contract, and being also of opinion that she was entitled to the rents and profits of said real estate from the death of her said husband, adjudged and ordered that a commissioner of the court should ascertain the rents and profits or annual value of said real property from the death of Matthew Weatherby, and report to the court in order to a final decree.
    In April 1828, the plaintiff being dead, the cause was revived in the name of W. R. Swart and James Crane her executors.
    The account reported by the commissioner shewed that the rents of the real estate devised bjr Matthew Weatherby to the defendant Fadeley,. from the 1st day of January 1822 to the Sth day of July 1827, amounted to 954 dollars 74 cents; and that the rents of the lot devised *to the defendant Lee, during' the same period, amounted to 165 dollars. 32 cents. The commissioner appended to his report, at the instance of Fadeley, 1. An account of taxes paid and repairs done by the said Fadeley on the property devised to him, since he had been in possession thereof; amounting to the sum of 150 dollars 82 cents. 2. An account of the rents and profits of the separate property of Jane Weath-erby, from the period of the separation from her husband until his death, amounting to 4437 dollars 50 cents.
    In May 1829, on the petition of the defendant Jacob Fadeley, he was allowed to file a bill against the executors of Jane Weatherby (which the order styles a bill of review and supplement) and the same was filed accordingly. This bill states that since the order for account was entered in the original cause, the present complainant had found, by minute search in the clerk’s office of Loudoun county, two deeds executed by Matthew Weatherby and his wife in- 1808, at the period of their separation, which the said complainant was advised would entirely change the aspect of the controversy. These deeds were exhibited with the bill and prayed to be taken as a part thereof. One of them, marked A. is mutilated in part, but sufficiently appears to be a conveyance from Matthew Weatherby and Jane his wife to John Littlejohn, whereby the said Matthew and Jane, for the consideration of one dollar paid to the said Matthew, bargain and sell to Littlejohn, with special warranty against themselves and those claiming under them, two houses and lots lying in Leesburg, and one lying in the vicinity or suburbs thereof. One of the lots is particularly described, and the mutilation occurs in the description of the other two. This deed is dated the 30th of June 1808, and is signed and sealed by Matthew and Jane Weatherby, and attested by three subscribing witnesses. The deed marked B. is dated the 30th of June 1808, and is likewise signed and sealed by ^Matthew and Jane Weatherby, and attested by three witnesses. By this deed Matthew Weatherby and Jane his wife, for the consideration of 200 dollars paid to the said Matthew by James Crane, bargain and sell to the said Crane “all the tract of land lying in the county of Loudoun and the county of Fauquier, now in possession of the said Matthew and Jane, supposed to contain 151 acres, and a house and lot in Mid-dleburg;” with special warranty against all persons claiming under them. Annexed to this deed is a memorandum in these words: “I am to convey the within property to the direction of mrs. Weatherby within mentioned, or to such person as she may direct. James Crane [Seal].” And the memorandum is attested by the three witnesses who subscribed the deed. The privy examination and acknowledgment of Jane Weatherby does not appear to have been taken to either deed, nor was either of them recorded. The bill then refers to the accounts reported by the commissioner, as proving that the rents of the property given up by Matthew Weatherby to the said Jane under the contract of 1808, and by her retained until the death of the said Matthew, with the approbation of James Crane the trustee chosen and appointed by her at the time of the separation, far exceeded the rents of the Leesburg lots from the death of the said Matthew to the death of the said Jane. Wherefore the bill prays, that the executors of Jane Weatherby may be made defendants and compelled to answer the premises; that the decree rendered in the original cause may be reviewed and set aside, and the complainant relieved entirely from the payment of the rents of the Lees-burg lots; and general relief. An affidavit of the truth of the matters stated in the bill was made by the complainant.
    James Crane, one of the executors of Jane Weatherby, answered the bill of Fadeley. He states that he has no recollection, nor does he believe, that the object of *the deed marked A. was to give to Matthew Weatherby a release of Jane Weatherby’s claim to the Leesburg lots under the marriage settlement; and he objects that neither of the deeds mentioned in the bill was ever acknowledged, proved or recorded, and that one of them is so much mutilated as to render it impossible to perceive its object." He submits whether those deeds can anywise alter the aspect of the cause, and prays that the bill of review may be dismissed.
    No proceeding whatever against the other executor of Jane Weatherby appears in the record, nor did he ever answer the bill.
    On the 9th of December 1830, both causes came on to be heard together in the supe-riour court of chancery. The opinion of that court was given in the following terms: “The court is of opinion that it was competent to Weatherby and wife, by conveyance duly executed, to pass away his right to the estate conveyed to Burr Powell by the marriage agreement, and that it was also competent to them, by arrangement and proper conveyances, to reinvest each party with their respective antenuptial rights, the court being of opinion that a feme covert, where there is no express restriction, may dispose even of her separate estate in lands by proper instrument; and unless the power of disposition is required to be exercised in a particular form, the disposition will be effectual if made with the ceremonies required by law for the conveyance of the real estate of a feme covert. If therefore the supposed designs of the parties in 1808 had been carried into legal and effectual operation, the court is of opinion that as the pecuniary advantage of the arrangement was obviously on the side of the wife, it should have been recognized. But the court is of opinion that the newly discovered exhibits were but a project, and abandoned, the deed filed in the original suit and dated June 30, 1808, and the bond which Crane was to have executed, having been ^probably substituted for them; and even if this were not so, the said deeds which have served as the foundation of this bill did not bind or affect the rights of Jane Weatherby, as she was not privily examined and assenting thereto.” Wherefore the court decreed that the bill of review filed by Fadeley be- dismissed with costs; that the said Fadeley, defendant in the original suit, pay to the plaintiffs in that suit (who admitted all the credits claimed by him) the sum of 803 dollars 92 cents, with interest from the Sth July 1827 till paid; that R. H. Lee, defendant in the said original suit, pay to the said plaintiffs 165 dollars 32 cents, with interest from the said Sth July until paid; and that the said plaintiffs in the original suit recover of the said defendants their costs.
    From this decree Fadeley prayed an appeal to this court, which was allowed.
    Leigh, for appellant.
    Johnson, for appellees.
    
      
      He decided the cause in' the court of chancery.
    
    
      
      See generally, monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
   BROCKENBROUGH, J.

Matthew Weath-erby being possessed of certain lots and houses in the town of Leesburg, and Jane M’Farland widow of John M’Farland being possessed of considerable personal property, and of real estate in and near the town of Middleburg, entered into marriage articles which, before the marriag'e took place, were carried into effect by a deed of marriage settlement dated in January 1804. The parties made two trustees, to one of whom, James Crane, was conveyed all of Jane M’Farland’s estate, and to the other, Burr Powell, was conveyed all of Matthew Weatherby’s estate. As to the first, the declaration of trust was, that after the solemnization of the marriage, Weatherby the husband was to enjoy all the profits of his wife’s estate, real and personal, during the joint lives of himself and his wife, or might sell, transfer and convey, “jointly with his wife, any of the said property of his wife which she might when sole have disposed of, she consenting to the sale and joining in the conveyance; if she survived the husband, the trustee was to convey to her all her own estate not disposed of as aforesaid; but if the husband survived the wife, then her estate was to go to whomsoever she should by deed or will, attested by three witnesses, appoint (and in such case not to be subject to the control or debts of the said Matthew Weatherby) and in default of appointment, to her nephews and nieces. As to his estate conveyed as aforesaid to Burr Powell, the said trustee was to permit Matthew Weatherby, during ' his life, to receive the profits thereof, or to sell and convey the same, provided his wife should consent to the sale and joining the conveyance ; and in case he survived his wife, the trustee to reconvey to him; but if the wife survived the husband, the trustee was to permit the wife, during her life, to enjoy the profits thereof; with similar power of appointment, and on failure of appointment, to his right heirs.

The husband and wife did not live together in harmony; they soon agreed to separate, and did separate. In June 1808 the parties executed two deeds. By one of these deeds (the same which is marked B. and annexed to the deposition of Henderson) the said Matthew Weatherby and Jane his wife conveyed with general warranty, for the consideration of 200 dollars, to James Crane (who was trustee of the wife in the marriage settlement deed) the land adjacent to Middleburg, and the lot in that town. By a memorandum at the foot of this deed the said James Crane bound himself to convey the said property according to the direction of Jane Weatherby, or to such person as she might direct. The other deed, (marked A.) was executed on the same day by the same grantors, to John Littlejohn, and although is in part mutilated, yet it appears clearly enough to be a conveyance, for the consideration of one dollar, of *the said Matthew Weatherby’s lots in Leesburg and its suburbs. The witness Henderson says that James Crane the trustee was to execute a bond to Matthew Weatherby, binding himself to convey to him the said lots, so that he might receive an unincumbered title to them; and he thinks that Crane did execute such bond, binding himself to see the conveyance put into due form by Jane Weatherby, or that she should not set up any claim to the said lots. He moreover proves that the consideration operating on Matthew Weatherby to execute the deed (B.) conveying his wife’s property to her trustee, was that he should receive his own lots free from in-cumbrance; and this is also proved by Chil-ton. To these deeds Jane Weatherby was never privily examined, and they were never recorded.

But it is clear that a separation between this husband and wife did in fact take place, at least as early as June 1808: that the wife did from thenceforth take and enjoy all the profits of the lot in Middleburg and the land adjacent, as well as of sundry slaves which were in her possession at the time of the marriage, until the death of her husband in 1821, a period of nearly 14 years. It is also certain that by the terms of the marriage settlement deed the husband was entitled to all those profits during his life, and that by surrendering them to. her use, in consequence of the arrangement; made by the separation deeds, great loss, was sustained by him, and great benefit-accrued to her.

Jane Weatherby survived her husband,, and the original bill in this case was filed" by herself, for the purpose of recovering from the executor and devisee of the hus-. band the rents and profits of his lots which accrued after his death, and those which, might thereafter accrue during her life.

There is no doubt that under the mar--riage settlement deed she would have been entitled to those rents and profits, if she. had continued to stand in the same-relation "Howards her husband as she-did on the execution of it. But the question is whether, either under the sep--aration deeds," or the fact, of actual separation and the enjoyment of her own property as before mentioned, she or her executors can now recover those profits.

It was contended by the appellant’s counsel that the deed (marked A.) which purports to convey the lots of the husband to Littlejohn, was made in conformity with-the power and authority conferred by the marriage settlement deed on Weatherby, to sell and convey the same, provided his wife should consent to the sale and join in the conveyance. I cannot think so, for two reasons; first, because the sale contemplated by the marriag.e settlement deed svas one which should. transfer,the, estate toa. real purchaser, and not to a mere trustee for the purpose of reconveying' it to the husband himself; and secondly, because the wife did not unite in the conveyance to Littlejohn in the mode directed by law. She was not privily examined; and although the settlement deed does not in terms speak of a privy examination, yet as there is no other mode by which a feme covert can by law convey her interest in land, the parties cannot be supposed to mean any other, unless they had so expressed it.

It was next contended by the appellant’s counsel that the'actual separation which occurred in this case, following the clearly proved parol agreement to separate on certain specific terms, and the possession of the property, real and personal, yielded to the wife in virtue of that agreement, would justify a court of equity specifically to execute that contract, on a bill filed by the wife for that purpose. This position is, I think, supported by the decisions of the courts of equity in England, in which it seems to be established that husband and wife have the power to effect a legal and binding separation through the intervention of trustees, by mutual agreement to part. 2 Roper 272. In this case, informal *as the instrument is which was executed by the husband and wife, yet the agreement to separate and the terms of the separation are satisfactorily proved, and this was to be effected through the agency of James Crane, the same trustee who had been chosen when the settlement was made. If the husband had undertaken to dispossess the wife of this Middleburg property, after having separated by mutual consent, and after having yielded to her the property for her own use, I am of opinion that a court of equity would rightfully have interposed, and have specifically executed the agreement of separation. , But the husband made no such attempt; on the contrary he quietly surrendered to her all her own property, to the profits of which he would have been entitled but for the agreement to separate; he voluntarily extended equity to her; he did all that he most liberal forum could have required at his hands.

But she is not contended with that full measure of justice. Having, during her husband’s life, claimed against the deed of settlement, as soon as she becomes a feme sole she sets up her claim under the deed. This is unjust and iniquitous, and cannot be tolerated. It would not be right to allow her claim, without requiring her to account for the profits received from her part of the estate, even if those profits were less than those accruing from her husband’s part. How much more glaring is it, when it is proved that'they are much greater 1 It appears that the net profits of the husband’s estate from the time of his death to the death of the wife were 969 dollars 24 cents; and by the commissioner’s report, founded on M’Veigh’s evidence, the profits which she derived from her part of the estate, after the separation and to the time of her husband’s death, amounted 'to 4437 dollars ¿0 cents; which sum he would have been entitled to, but for the separation.

*1 am of opinion that the decree be reversed with costs; that the original bill filed by Jane Weatherby be dismissed; and that the appellant recover his costs, as well in the suit in which he was plaintiff as in the said original suit.

CABELL, J.

It is not necessary to decide whether, if either of the parties to the term of separation, so clearly and fully proved in this case, had refused to comply with those terms, a court of equity would have enforced their specific execution. That question does not arise: for they were actually executed by the parties themselves; so far at least as related to the enjoyment of the benefits resulting from the arrangement. Weatherby yielded up all his rights under the marriage settlement, and strictly complied during the balance of his life, a period of 14 years, with the term of the separation, which were disadvantageous to himself and highly beneficial to his wife. During all this period she acquiesced in and received the benefit of the arrangement made by her own trustee, and then, on the death of her husband, claimed the benefit the marriage settlement which she had so long repudiated. This ought not to be tolerated in a court of equity and good conscience. On this ground, I am of opinion to reverse the decree and to dismiss the bill with costs.

Decree reversed and bill dismissed.  