Volume 20 — South Carolina Equity Reports

Before Johnston, Ch. at Edgefield, June, 1843. The deed under which have arisen the questions here litigated, is as follows:— DEED.

Before Johnson, Ch. at Abbeville, June, 1845. Held: that the property was liable to the debts of the husband, contracted after, and not before, the marriage, and a settlement to the separate use of the wife, of what remained after paying the debts, was decreed. Allen vs. Rumph, 2 Hill Ch. Rep. 1, is to the same effect; and so in Colclough vs. Colclough, cited in the last case.

<p>When testator gave to his wife the whole of his estate, both real and personal, during her life or widowhood, and at her death or marriage, to be equally divided among his children, each child, surviving the testator, took a vested transmissible interest; and the administrator of any child dying afterwards, during the lifetime of the widow, will, on the falling in of the life estate, be entitled to that portion of the estate which his ihtestate would have taken, if he had survived the tenant for life.</p> <p>The rule laid down to distinguish between vested and contingent interests, is, that if the devisee is in a capacity to take, at the death of the testator, whenever tire possession becomes vacant, and is only withheld from the possession by the temporary right of enjoyment in another, then the devisee has a vested transmissible interest, and not one that is merely contingent.</p> <p>Where the widow of testator is, under the will, tenant for life, and apportions off any part of the estate to his children, under a power vested in her by the will to give off to those who may marry, &c. any part which she might be able to spare — an account to be kept of its value, to be discounted against their full shares at the final distribution, the portions assigned to the children thus advanced, vest in them absolutely, subject only to be accounted for at the final distribution on the falling in of the life estate, and not to be thrown back as a part of the general estate to be then distributed.</p> <p>If a creditor under ca. sa. take from his debtor an assignment of his undivided interest in a personal estate, such assignment is valid to the amount of his credit; and if he afterwards purchase the same interest from the sheriff, who sells it under a levy to satisfy senior executions to his own, the sale is void, but the creditor so purchasing will stand in the place of those senior creditors and be subrogated to all their rights.</p> <p>It is the constant practice of the court to require security for the production of slaves at the termination of the life estate, or any other contingency where the rights of the remainderman spring up, whenever these rights appear to be in danger.</p>

<p>Where the donor retains possession of the property after the execution of the deed, and his note, for the payment of money, is .either taken, or signed as surety, by another not having notice of the deed, it constitutes a charge upon the property in the hands of the donor; and a release of the debt, afterwards made in order to support the deed, constitutes a good consideration to charge the trust estate.</p> <p>The removal of an existing incumbrance is a ground for reimbursing the party removing it, out of the fund thus exhonerated; any expenditure made for the benefit of a trust estate, constitutes a good claim against it, to the extent of the benefit conferred.</p> <p>Where the life tenant has rented or hired the land or slaves, to another who employs them in planting, should the life tenant die after the first of March, the hirer’s possession shall not be disturbed until the crop of that year is finished, but he shall secure to the remainderman that proportion of the rent or hire •arising after the accrual of the remainder.</p>

Before Dunkin, Ch. at Edgefield, June, 1845, whose decree sufficiently explains the case. Dunkin, Ch. The complainant is the widow of Richard Bullock, deceased. Her husband died at his residence in Mississippi, on the 1st January, 1836. He formerly owned a plantation in Edgefield District, on which he resided, until his removal from the State in November, 1829.

<p>Where, by authority of the will of a testator leaving several children, his executor gives, by way of advancement, certain negroes to the husband of his daughter on her marriage, and after having possession of them for some fourteen years, the husband, having no other property, mortgages them for valuable consideration, (although the will further required the property advanced to be valued and receipts to be given for it, so as to ensure equality among the children at the final division,) the executor cannot defeat the sale of these negroes in satisfaction of the mortgage, by claiming a specific delivery of them under a receipt given by the husband for them as a loan, at the time of their delivery to him by the executor, of which receipt the mortgagee had no notice.</p> <p>Where one obtains credit on the faith of his ownership of the property in his possession, and on this confidence only, the claim of the creditor cannot be defeated by a latent right of which he had no notice.</p>

Before Dunkin, Ch. at Edgefield, June, 1846. A bill in this case was filed on the 29th April, 1842, by the complainants testator, as trustee of the defendant, Mary G. Adams, for an account' and settlement, and especially to have paid to the complainant' various sums of money, which he had advanced out of his own funds on account of the trust estate.

<p>The husband of a distributee, under a will leaving property in trust for the sole and separate use of testator’s daughters, &c., who, at the sale of the Commissioner, under ah order for distribution, hadbecome the purchaser of a tract of land, against the price of which his wife’s share had been discounted, was held to have been a purchaser subject to the trusts declared in the will; and although the land had been sold in his lifetime, for his debts, on application of the wife, after his death, the Court ordered the possession to be surrendered to her, and the rents and profits which had accrued after the death of the husband, to be accounted for.</p> <p>The general principle is, that where land is purchased by one who takes a conveyance in his own name, but the purchase money is paid by another, there is a resulting trust in favor of him who pays the consideration; and such trust may be established by paid, after the death of the nominal purchaser.</p> <p>To rebut the plaintiff’s equity, in order to entitle the defendant to the protection of a purchaser for valuable consideration, he must prove the actual payment of the money before notice of the plaintiff’s title.</p> <p>A purchaser at Sheriff’s sales, who is also the plaintiff in the execution — to whom the money is payable — and who, therefore, parts with no money, is not entitled to the protection of a hcma fide purchaser for valuable consideration.</p>

<p>Where testator, by his last will, devised and bequeathed real and personal estate to his wife, for life, and at her death to return to and become a part of his estate, and made no further disposition of it — it is a case of intestacy as to the reversion, which, on his death, vested instantly in those entitled to distribution, among whom the wife was prominent.</p> <p>Where, by the terms of the marriage settlement, the whole of the wife’s estate is limited over to her rigid hdrs, in the event of her not disposing of it by deed or will, should she die leaving no such deed or will, and leaving no issue, her estate is distributable under the Act of 1791, in the proportion of one-half to the husband, and the other half to her collateral relations. In such case, the husband is not the hares nakis, but the hares fadm of the law.</p> <p>The power of a married woman, over her separate estate, is derived from the deed or instrument creating such estate, and she has no other capacity to contract, but as authorized or empowered by the settlement.</p>

<p>The bill in this case is exhibited by George Holloway and his wife, Rebecca, a sister of Elizabeth Rochell, and by her brother, Wm. H. Adams, against the other brothers and sisters of Mrs. Rochell, the children of her deceased brothers and sisters, her administrator, Thomas Furguson, and her husband, John Rochell, to have partition made of her lands other than those devised to her for life by the will of her first husband, Samuel Tompkins.</p> <p>This case and the case of John Rochell vs. Samuel Tompkins and others, was tried by Chancellor Johnson together. His decree in this case was as follows:</p> <p>Johnson, Ch. In the decree pronounced in the case of John Rochell vs. Samuel Tompkins and others, I decided that the defendant, John Rochell, was entitled, upon the death of his wife, Elizabeth, to one moiety of her estate ; and that under the marriage settlement between her and the said John Rochell, her estate was chargeable with debts of a certain description, and with a view of ascertaining whether there were any such debts, a reference to the Commissioner was ordered. There can be no order for partition until the demands chargeable upon the estate shall have been first ascertained and satisfied, but meanwhile there is no objection to an account being taken between the said John Rochell and his co-tenants, as to the rents and profits alleged in the bill, and admitted in his answer, to have been received by him since the death of his said wife.</p> <p>It is therefore ordered and decreed, that it be referred to the Commissioner to take an account between the said John Rochell and his có-tenants, of the rents and profits of the lands of his deceased wife, Elizabeth, that have been received by him since her death, all equities being reserved. It is further adjudged and decreed, that upon the death of the said Elizabeth Rochell, the defendant, Johu Rochell, as one of her “ right heirs and representatives,” became entitled to one moiety of all her lands, and that the other moiety became distributable between the surviving brothers and sisters, and the children of the pre-deceased brothers and sisters, of the said Elizabeth, mentioned in the bill, the children of each pre-deceased brother or sister taking the share to which their deceased parent would have been entitled if alive.</p> <p>And it is further ordered and decreed, that after satisfaction of the debts chargeable upon the estate of the said Elizabeth Rochell, according to the said decree in the cas- a .John Rochell against James Tompkins and others, if any such debts appear, the personalty of the said estate being first appropriated to the payment of the same, the lands of the said Elizabeth Rochell, described in the bill, be parted and divided in the proportions above mentioned, between the parties entitled thereto, and if necessary for that purpose, that a writ of partition do issue out of this Court in the usual form.</p> <p>The collateral relatives of Elizabeth Rochell, who are parties in the cases above stated, moved the Court of Appeal-.... modify the Circuit decree in each of the said cases, upon the following grounds:</p> <p>1. That according to the correct construction of the deed of marriage settlement between John Rochell and his late wife,, Elizabeth Rochell, he is wholly excluded from any participation in the distribution of her estate; she having died without exercising the power of disposition secured to her by said deed, and he not being embraced in the description of the persons to whom her estate is in that contingency limited over.</p> <p>2. That under the said deed of marriage settlement, Elizabeth Rochell had not the power of a feme sole, in rendering her separate estate responsible for her debts, and it is respectfully .submitted, that no debts incurred by her, after her coverture, impose any charge upon her estate, except such as were manifestly proper and necessary to be incurred.</p> <p>The collateral relatives of Samuel Tompkins, deceased, parties defendant in the case first above mentioned, appealed from the Circuit decree in that case, and moved that the same be modified, upon the ground:</p> <p>That all the interest of Elizabeth Rochell in the lands and personalty devised and bequeathed to her for life by the will of Samuel Tompkins, ceased and determined at her death.</p>

<p>The true intention of the Statute of 1791 is, that the estate of an intestate ancestor, including advancements, is to be considered as a common fund, out of which each child is to draw, at the intestate’s death, an equal portion; in ascertaining which, that part which has been given, or advanced, is to be estimated at what it is worth at the intestate’s death, relation being had to its situation at the time of the gill.— Vide McCajw vs. B/evyit, MeC. C. ft.</p> <p>In the absence of a testamentary disposition, the Statute controls the distribution, as intestate property; and it is not competent for a party to give any other direction than the Statute gives, unless, by a will, he deprives the property itself of the character of intestacy, in virtue of which the Statute assumes the disposal of it.</p> <p>What are, or are not, advancements, must always depend very much on the condition in life of tire parties, and may be absolutely fixed by their intentions at the time, if they can be ascertained.</p>

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

<p>The liability of a trustee is not measured by the abstract rule of his duty. The universal test of his liability, or exemption from liability, is this: is there, or i» there not, in this case, evidence of faithful endeavors to fulfil it t</p> <p>To take advantage of a mistake, committed in an evidently honest endeavor, by the trustee, to perform his duty, and to make him liable for the consequences, would neither square with the dictates of justice, nor promote the true policy of the Court, or tire interest of its sanctions.</p>

<p>A party indebted to the Bank of Hamburg mortgaged his real estate to secure the payment, and afterwards sold certain negroes to the defendants — he then confessed a judgment to the Bank for the debt secured by the mortgage of .the real estate, under which it was sold by the Sheriff and purchased by the Bank. It was subsequently discovered that there was a judgment in the office against thé mortgagor, older than that under which the real estate had been sold; the Bank then ordered the negroes to be sold to satisfy this judgment — defendants then, to protect their purchase, executed a forthcoming bond to the Sheriff, obtained an assignment of the judgment, and instituted a suit at law and obtained ajudgment against the Sheriff for so much of the amount of the sales of the real estate as would satisfy the said older judgment. The Court ordered and decreed, that the defendants be perpetually enjoined from prosecuting their judgment at law against the Sheriff, and that they pay the cost of these proceed- • ings.</p> <p>If one against whom there is a judgment, sell a portion of his property, and afterwards sell his remaing property, the property last sold is first chargeable, in equity, with the payment of the judgment debt.</p>

<p>The Act of 1839 requires expressly that the Ordinary shall furnish to the party appealing, not only a copy of his judgment or decree, but “ of the evidence taken by him in such proceeding.”</p> <p>The Court will not sustain a decree of the Ordinary charging the estate of an administrator with an amount due the estate of his intestate, which had been lost by the insolvency of the party owing it, unless sufficient evidence of neglect, on the part of the administrator, be reported by die Ordinary to warrant his decree.</p>

<p>Where the bill alleged, that since the proceedings were instituted, the defendant had sold several negroes claimed as partnership property, and that the complainant had good reasons to believe that defendant intended to sell or remove, beyond the jurisdiction of the court, the remaining negroes, and the answer admitted the sale, and>did not deny the intention to sell the residue — the court held, that a writ of injunction had been properly granted, and an order made, by the commissioner, to restrain the defendant from selling or removing, and to compel him to give a bond for the forthcoming of the said property, to abide the final order of the court.</p> <p>It has long been settled that a bill well lies for tire specific delivery of slaves generally; therefore, when a plaintiff alleges property in himself, and that the slaves are withheld by another, he states a case giving jurisdiction to the court of Equity, and the court will administer justice by the adoption of its ordinary practice in analogous cases.</p> <p>It has been laid down as a general rule in equity, that where the plaintiff is entitled to relief, if that relief consists in restraining the commmission, or continuance, of some act of the defendant, the court administers it by means of a writ of injunction; and there is no doubtof its power to restrain the alienation of specific chattels, and to prevent the wasting of assets.</p> <p>Although an injunction will not be granted merely on the dissolution of a co-partnership, it will be granted where there is a violation of duty in tire partner, or a breach of contract.</p> <p>The Act of 1840 is remedial, and imposes no restriction on the commissioner, in the exercise of a sound discretion, in granting a specific injunction, which continues of force until dissolved by order of a Chancellor.</p> <p>Before the adoption of the Act of 1840, it had been decided, that on the coming in of an answer, the Chancellor may grant a new injunction, or may malee such other order on the bill and answer as they may require, and this court will not attempt to control his discretion, but upon plain and obvious mistake.</p>

<p>If a deed of personal property to several, “ to them and their issue, forever,” contain no limitation over, the absolute title to the property will vest in the first takers.</p> <p>Issue take as purchasers, under a deed of personal property, where the property Is limited over by a limitation which is not too remote: and the validity of the gift to the issue, in such cases, depends upon, and is to be tested by, the remoteness or sufficiency of the limitation.</p> <p>“Where a deed of personal property was to grandchildren, then alive, as also to those which might afterwards be born, with a limitation over-to the survivors, ■of the share of either that might die, “not leaving lawful issue” — the Court held, that the issue of an afterborn grandchild could not take under the deed, the limitation being too remote.</p>

<p>Where an association becomes incorporated, and the incorporation accepts an assignment of all the property of the association, for the purpose of carrying out their object, they are primarily liable for their debts. .</p> <p>Where the assets of a corporation are not sufficient to satisfy all its creditors, the individual corporators are individually liable to make good the deficiency, including that which may arise from the insolvency of any of the corporators, to the extent of the capital professed to be paid in, as set forth in the charter.</p> <p>Capital properly means the property which one has, clear of debt.</p> <p>A corporation, and its corporators, individually, are liable for the interest on simple contract debts recovered against them at law, and for the costs of the suits for their recovery, provided that the aggregate sum of their liabilities (these included) shall not exceed the amount of capital which they professed to be paid in, as setforth in the charter.</p> <p>If an association, formed for any purpose, afterwards becomes incorporated, there must be some act or expression on the part of the individuals of tire association, to signify their acceptance of the charter, in order to charge them in the character of corporators.</p>

<p>At the hearing of a report, the practice is, that the Court hear no evidence but what was before the Master, and reported by him as evidence upon which Ms report is founded.</p> <p>Where an appeal is taken from the Master’s judgment, or report, no matter in point is to be considered by the Court, which was not before the Master; and his report must stand in ail particulars not excepted to.</p> <p>Where the Trustees of a company made a loan from the Bank, and mortgaged real estate of the company to secure its payment, and the Cashier of the Bank, by mistake, entered satisfaction on the record of the mortgage in the Register’s office, under Ms own seal, and the Bank proceeded at law and recovered judgment against the Trustees; the Court held the Cashier to be a competent witness to explain the mistake, and that the Trustees, standing in the posture of sureties, were entitled to the enforcement of the mortgage in exhonoration of their personal liabilities under the judgment.</p> <p>The instrument to estop a corporation, must be the deed of the corporation under its own proper seal; and if the deed of a third person is insisted on, as against the corporation, then his authority and agency must be established by the party claiming adversely.</p> <p>Where the equities of a party have been stirred in a suit, no acts of the other parties will be allowed to his injury, during the time the Court has under consideration the merits of the case. They and their assignees, intervening under them pendente lite, will be bound by the decree.</p> <p>Without proof of some understanding to the contrary, a note given to the Bank as a renewal is entitled to all the securities of the original note.</p> <p>The rule is, that when a mortgagor comes to redeem, he must pay, not only the mortgage debt, but all that is equitably due as incidental to that contract.</p>

<p>Where two parties took a bond payable to them, or either of them, as executrix and executor of the same testator — the Court, regarding them as trustees of the estate, when the executor afterwards became executor also of the obligor in the bond, on the petition of the executrix would not allow him to deny his fiduciary character, nor her to be met with the technical objection, that the bond was extinguished by the appointment of her co-obligee as the executor of the obligor; and although all the assets of the obligor’s estate which had come into tlie hands of the executor, had been appropriated to the payment of other debts, decreed the bond debt entitled to priority of payment out of other assets yet to be administered.</p> <p>If the obligee in a bond appoint the obligor his executor, no action can lie at law, and the debt is extinguished; but in such case, equity raises a trust, not only for a residuary legatee, but for the next of kin.</p> <p>Although an executor, who is the obligee of the testator, accept and qualify on the will, he may, on failure of assets coming into his hands, sufficient for its payment, sue the heir in a court of law, for the bond debt due to him by his testator.</p> <p>In reference to the question of extinguishment, it is immaterial, in this tribunal,, whether the assets of an estate were applied to debts of an equal or lower degree.</p> <p>Where the executor of two testators had kept joint accounts, and on a separation of the accounts by the Master, had obtained a decretal order for the payment, by the receiver, of a debt found to be due him for advances made the estate of his first testator, and had assigned this order — the Court refused, on the hearing of a subsequent report on the accounts, to confirm tire recommendation of the Master to set off, against the sum assigned, the value of a negro, of the estate of the second testator, which had been sold by the executor previous to the first hearing, and not then accounted for, holding that there was no privity in the connection of the executor with these two estates, and that the rights of third parties had intervened since the decree.</p>

<p>A denizen cannot, under the Act of 1799, inherit real estate in South Carolina.</p> <p>The legal effect'of the Act of 1799, is to waive the right the State has to-escheat the lands of aft alien during his life, but not to remove the disability of the common law which bars him from inheriting.</p>

<p>Where a principal gave an absolute bill of sale of certain slaves to his surety, with a verbal understanding that it was to operate as a mortgage to secure him against liability, and the surety, after paying the debt of his principal, had taken and retained possession of the slaves for more than two years--the Court held that the claim of the principal was barred by the Act of 1712.</p> <p>Where a creditor had agreed to take land from his debtor at a certain price, in part payment of the debt, and the land had been sold at sheriff’s sale, to strengthen the title, and purchased at a nominal price and taken possession of by the creditor — there being strong evidence of a settlement having been after-wards had between the parties — after ei'ght years’ acquiescence on the part of the debtor, the Court refused to disturb the title after the death of the creditor.</p> <p>Where a party borrowed a sum of money from another, and delivered him possession of a slave whose hire was to pay the interest for two years — there having been a settlement between them, about the expiration of that time, and the lender having retained possession of the slave afterwards, and for seven years previous to his death — the Court held that the claim of the borrower to the slaVe was barred by the Statute of Limitations.</p>

<p>Where, on the sale of a slave, the purchaser gave his bond with two sureties for the price, and a mortgage of the slave, and then sold the slave to another, who, before the execution of his bill of sale, sold to a third party, who took the bill of sale from the first purchaser, and who again sold to another, and then he to a fifth party, who removed the slave, and the sureties of the mortgage bond afterwards paid the debt to the first vendor, and took an assignment of the mortgage, the first purchaser having become insolvent, the Court held that this was not a case in which their bill would lie for the specific deli very of the slave, nor for the foreclosure of the mortgage, but ordered that the third purchaser, who had sold the slave with notice of the mortgage, and against whom the bill was filed, should pay to the complainants the sum for which he had sold the slave, with interest thereon from the date of the sale.</p> <p>A bill may be sustained for the specific delivery of slaves where the owner has had possession of them and has been deprived of that possession by another, or where the party contracts for the purchase of specific slaves, or where one is entitled to slaves by the gift or limitation of a friend, relative or ancestor; for in such cases the general presumption is, that there may be some attachment to, or some particular qualities in, the slaves themselves, or some other sufficient reason which would render them of more value to the owner tiran could be compensated by their price estimated at a mere market value.</p> <p>In this Court the mortgagee of slaves, though having the legal title, is not considered in any manner as the owner of the slaves — he is regarded as having taken a pledge or security for his debt, with no view to the possession of the property itself — his object is merely the recovery of his money.</p> <p>Bills are entertained in equity for the foreclosure of mortgages of personal property, on the ground that the property may be sold under the direction of the C ourt; that if it fall short of satisfying the debt, the mortgagee may have a decree for the residue, or if there should be a surplus, that it may be awarded to the mortgagor, and so put an end to litigation.</p> <p>The sale, by one in possession of a chattel, is of itself a conversion, as against the true owner, without any demand on his part; and although this Court does not entertain an action of trover, it may award the value of property which has been destroyed or removed.</p>

Before Johnston, Ch. at Marion, February, 1847. Johnston, Ch. This is a bill filed by the ex’or of Silas Anderson, who died in March, 1845, for the settlement of certain questions hereafter to be stated.

Before Johnson, Ch. at Fairfield, June, 1846. Johnson, Ch. The complainants, in contemplation of marriage, entered into an agreement, which was intended to secure to the separate use of the wife, then Martha E. Luter, all the property of which she was possessed, and to protect it against the creditors of the husband, who was then insolvent, and the covenants of the deed were calculated to effectuate these objects.

Johnston, made Feb 1847, refusing to overrule an order made by His Honor Ch. Dunkin, at Marion, February, 1846. In October 1842, William Evans purchased at Sheriff’s sale, certain real estate of Thomas Evans. Shortly after-wards a bill was filed by the execution creditors, to set aside the sale.

<p>Where defendant entered into a bond conditioned to convey a house and lot to complainant when he paid the purchase money, and the money was paid, but in the meantime defendant had incurred liabilities for complainant, as surety for the discharge of his duties as sheriff, the Court refused to decree a specific performance of the contract, and allowed the defendant to avail himself of his legal title to indemnify or reimburse himself for the sums due or paid by him as surety of complainant. Vide Walling v. Aiken, 1 M’Mul. Eq. 1.</p> <p>The power to enforce the specific execution of contracts, is now universally conceded to this Court, as belonging to its extraordinary jurisdiction, founded entirely on the equity which a party has to have a literal fulfilment of his contract, which could not be obtained at law; but it is a settled principle of the Court not to grant merely equitable relief, without requiring of the party asking it, to do equity himself.</p>

Before Dunkin, Ch. at Barnwell, February, 1847. The facts of the case are sufficently set forth in the following circuit decree. ■ Dunkin, Ch. The defendant, Jabez G. Brown, was the trustee of Mrs. Susan G. Brown (wife of the other defendant, Charles J. Brown) under two deeds described in the pleadings. In February, 1845, the complainant, James C. Brown, was substituted as trustee in the.place and stead of Jabez G. Brown.

Before Caldwell, Ch. at Union, June, 1847. Caldwell, Ch. John Rogers and Ann Fincher made a marriage settlement on the 2d of June, A. D. 1836, and immediately afterwards intermarried.

Before Dunkin, Ch. at Barnwell, February, 1847. Dunkin, Ch. The state of the pleadings admits the correctness of the allegations made by the complainant.

<p>On appeal from the decree of Dunkhn, Ch. at Anderson, June, 1846, and by the Appeal Court referred to the Court of Errors, at Columbia, December, 1847.</p> <p>Dunkin, Ch. This was a suit of nullity of marriage. It is described as being instituted by the complainant against Mary Clements, falsely calling herself Mary Mattison, to have a marriage, in part solemnized between them, declared to be null and void in law.</p> <p>The allegation is that the complainant, being addicted to habits of intemperance, was .married to the defendant, in the Spring of 1840, while in a fit of delirium tremens. This bill was filed on the 11th of November, 1845, and the prayer is that the said marriage maybe “decreed to be null, void, and of no effect whatever, and the complainant fully absolved from all the legal effects and consequences of the said marriage ceremony.”</p> <p>At the opening of the case, the Court expressed a strong impression that it had not jurisdiction to entertain the proceeding, or grant the relief sought. Subsequent examination and reflection have served only to confirm this impression.</p> <p>It is admitted that, in England, cases of this character belong exclusively to the Ecclesiastical Courts. Collaterally, it may be the duty of a Court of Chancery, or of Common Law, to inquire into, and determine, the validity or invalidity of a marriage, as of any other contract. But this is when the question arises in the administration of their ordinary jurisdiction, Such was the case of Foster vs. Means, ■ Spears’ Eq. 574.</p> <p>Rhame vs. Rhame, McCord, 197, was a bill for alimony. Mr. Justice Nott, conceding that such cases belong to the Ecclesiastical Courts, regards alimony as an exception, both from the settled practice of the Court in South Carolina, and from necessity. But it was in that case ruled that “the jurisdiction of the Court must be limited to the allowing of alimony,” and to such orders as are necessarily incident to the effectual execution of such a decree.</p> <p>This Court has no more authority to entertain a suit fpr nullity of marriage than to grant a divorce, or decree a restitution of conjugal rights. By the terms of the statute, its jurisdiction is confined to cases of Chancery cognizance in Great Britain. In some of the States, as in New York, the Court of Chancery has, by statute, the sole jurisdiction over the marriage contract in certain specified cases, and that may possibly warrant the inference that the Legislature has thereby recognised this Court as the proper organ for such a jurisdiction. But so important have the Legislature of South Carolina always deemed this authority, and so delicate the exercise of it, that they have never delegated to any judicial tribunal, nor have they exercised, themselves, the right of interference with the matrimonial contract. So far as the rights of property were involved — so far as protection to the person was necessary, the powers of the Courts are ample, and require no enlargement; but as to the inviolability of the contract itself, the silence of the Legislature is the best evidence of the sentiment of the public. “ Nolumus leges mutari.”</p> <p>It is ordered and decreed that the bill be dismissed.</p> <p> Grounds of Appeal. </p> <p>The complainant moved the Court of Appeals in Chancery to reverse the decision of the Chancellor in this suit, on the following grounds:</p> <p>1st. Because, there being no Ecclesiastical Courts established in South Carolina, the relief prayed for in complainant’s bill belongs, from necessity, to the Chancery jurisdiction.</p> <p>2d. Because it is the peculiar province of the Court of Chancery in South Carolina to grant relief against fraud, and to set aside agreements and contracts procured by fraud or imposition, or which were, in other respects, null and void.</p> <p>3d. Because the alleged marriage of complainant, being entered into whilst in a state of insanity, was a nullity, and the Court of Chancery has the right to restrain the defendant from assuming the complainant’s name, passing as his wife, and harrassing him with groundless actions and suits for alimony, maintenance, &c.</p> <p>4th. Because the decree was in other respects contrary to law and equity.</p> <p>We claim the jurisdiction of this court on various grounds. In England, it has concurrent jurisdiction with the Ecclesiastical Court. We have no Ecclesiastical Court, and if this court has no jurisdiction none other has. This court protects lunatics and idiots. It has quia timet power. It will adjudicate to avoid multiplicity oí actions, to perpetuate testimony, and to award maintenance or alimony. Chancery Courts, in England, exercised this jurisdiction anterior to the existence of Spiritual Courts. The court is not asked to set aside a contract of marriage, but to decide that no contract did ever exist. In this case there was the form, but not the vitality of a contract. Foster v. Means, 1 Spears’ Eq. 571. Without a suffL cient share of reason, the contract is not valid. T-- v. Murray, 1 Bland. Ch. 479. If the complainant had sold land in the state he was, the court would have pronounced the contract void. Marriage, in our State, is a civil contract, and one of the most importance; should it be without a remedy in our courts? We seek to have this declared no contract, but one of fraud. In Im,er v. Width, 3 Johns. C. C. 69, a minor’s marriage was annulled. Hinlap v. Grocher, 1 Hopk. C. C. 478, is a leading case in which the whole doctrine is reviewed — a marriage in this case was declared void, consent having been obtained by duress: — In 1 Hopk. C, C. 557, it was said the court could not dissolve marriage for physical impotence, but for fraud in the contract. Perry v. Perry, 2 Page, 506. The marriage is not dissolved, but no marriage ever was made. Where there is a right, some tribunal must enforce it. This is a' civil contract; we seek not to have a marriage annulled for incompetency or disability. In Wightman v. Wightman, 4 Johns. C. C. 343, lunatics and idiots are under the protection of the Civil Courts, where there is no Ecclesiastical Court. 2 Iredell, 470, and 3 Iredell, 98. The marriage of a lunatic is void, Scott v. Chappel, 5 Page, 43. — In this case, fraud annulled the marriage. All civil contracts are void for fraud. In States where divorces are granted, these cases do not come within the statutes granting divorces, but are based on the ancient laws of English Chancery jurisdiction in similar cases. This court is the guardian of lunatics, minors, &c. The rights of many arc involved in this question; are they •to be without remedy ? Necessaries are sued for by the wife, &c. '&c. &c.; and this court should prevent the multiplicity of suits. The complainant 'wishes the testimony to be perpetuated and under the quia timet power of the court.</p> <p>What is to be the judgment of the court in a case of this kind ? What its form, and how carried into effect? This .is a contract by parol. There is nothing tangible to act upon. The parties are not before the court. Other rights have already attached; creditors, &c. are to be satisfied. They have their rights. They are not here, and cannot be reached by any judgment of the court in this case. No point is made in the bill to perpetuate .testimony ; it is simply -'to dissolve, or have declared null, this marriage. The bill alleges that a marriage has been entered into, and prays that it be vacated; and still the counsel asks that the marriage should be declared null. This is a distinction without a difference. If this court is to enquire into marriage contracts, litigation will be .endless. There has been no fraud practiced in this case.</p> <p>In our country, a marriage contract is a civil contract, and if fraudulently entered into, is a nullity ; and why should not this court entertain jurisdiction and declare it a nullity ? Does not policy require it ? This will prevent a multiplicity of actions, preserve the testimony, <fcc. (Mr. Perry here read the argument of counsellor Sampson, in a case in 1 Hopkins, 487, and adopted it as his own in the present case; and in reference to the practice in our own courts in cases of alimony, cited) Rhame vs. Rhame, M'Cord’s Ch. 197, and Printer vs. Printer, 4 Dessau. 53. In 1 Rich. Eq. 127, the court assumed jurisdiction,- because there was no jurisdiction elsewhere. In 2 Eq. Rep. 204, the court assumed jurisdiction from analogy to the practice in England, in cases of divorce. In Wightman vs. Wight-man, 4 Johs. C. C. it is said the tiullily of the marriage of a lunatic should be declared by this court. In England, they have Eclesiastical Courts to notice these matters, but we have no such courts, therefore this court has jurisdiction; 3 Iredell, 98 ; (North Carolina ;) vide Maddox Chancery, 385, note C. as to there being no Ecclesiastical Court here. This bill has been answered, and the defendant has put himself in court, and cannot complain of want of jurisdiction. As to creating litigation, it is an objection incident to all cases of fraud.</p>

<p>Two executors converted part of their testator’s goods into money, and died; an administrator de bonis non of the testator was then appointed, with whom the personal representatives of the deceased executors accounted, and from whom they took a receipt and discharge in full, &c. — the Court allowed this to be a full and sufficient bar to an account prayed by the legatees of the- testator-against the representatives of the executors, for the same matter — holding that the administrator do bonis non was fully competent to demand and compel an account from the representatives of his predecessors in office.</p> <p>The administrator de bonis non is entitled to all the unconverted goods of the testator, and although the proceeds of those converted go by legal right to the personal representative of the executor, to be administered by him as parcel of the executor’s estate; yet in equity, he is to answer, out of the estate, for all the trusts upon which the executor held the money, and the administrator de bonis non is entitled to demand the account and receive the money.</p> <p>Note. — The above embodies the decision of the Court of Errors on the only points submitted to them. On their certifying back their opinion to the Court of Appeals, that court approved of the following additional points, ruled by his Honor, Chancellor Johnston, on the circuit.</p> <p>Notice will not be implied from the recording of a deed, which was not required to be recorded, and which was recorded at such a distance of time from its execution as would have been a void registration as to any deed required to be recorded.</p> <p>It is no devastavit in executors to permit a slave of their testator to go into possession of his widow, with whom her only child lived, and who was co-legatee with her of the slave.</p> <p>Where husband and wife were in possession of slaves, liable to partition between them and an infant daughter of the wife, by a former marriage, who lived with them — there having been no overt acts or claims, signifying an intention to test the validity of a title afterwards relied on — the Court held that their possession was the possession of the infant, their co-tenant, and, regardless of the lapse of time, ordered a writ of partition to divide the slaves, in accordance with the will under which they were co-legatees.</p> <p>The Court refused to allow the counsel fee, paid by one called to account as admimstrator de bonis non, to be charged against the estate which he represented, when it was incurred by him for his own exclusive benefit, and to sustain interests adverse to the legatees who sought the account.</p>