A marriage settlement provided that the trustees, after the
death of the husband, should stand possessed of a bond executed to
them by the husband and of the sum of $37,038 to be received by
them upon trust to place out the same when it shall come into their
hands at interest on freehold securities, or invest it or any part
of it in the purchase of stock of the United States of North
America or bank stock there,
with the approbation of the
wife, and to call in and replace the same and reinvest the
same and the produce thereof from time to time upon or in such
securities or stock,
with the approbation of the wife.
It is not an unreasonable interpretation to say that the wife,
who survived the husband, was to have a controlling agency within
the limitation prescribed by the contract. She has not an arbitrary
and unlimited discretion. The investment is restricted to three
objects -- freehold securities, United States stock, or bank stock,
and the trustees are not authorized to make any other investment.
The trustees are bound "to make the investment in any one of the
funds mentioned which the wife might request or direct."
The husband by his will confirmed the marriage settlement, and
he further declared
"That if the sum of $37,038 secured to be paid to the trustees
should at any time be found insufficient to raise and bring into
the hands of the trustees the clear annual sum of $2,222.22, the
annuity secured to be paid to his wife by the settlement, then the
trustees of his will shall from time to time transfer to
themselves, as trustees of the settlement, out of the residuum of
his estate, such sum or sums of money as may from time to time be
found necessary to make up any deficiency there may happen to be
between the current amount of the interest and produce of the
principal sum and the amount of the annuity, so that in no event
less than $2,222.22 shall be raised annually for his wife or for
her benefit in the United States."
The personal estate of the husband, exclusive of the sum placed
in the hands of the trustees of the annuity, was so invested as to
produce six percentum per annum, and the direction of the wife to
keep invested in six, percent stock of the United States the
$37,038 produced a deficiency in the annuity which she claimed to
have made up from the residuary estate. The wife has a right to
claim this deficiency to be so made up.
There is no doubt but that under the general prayer in a bill in
chancery for general relief, other relief may be granted than that
which is particularly prayed for, but such relief must be agreeable
to the case made by the bill.
Page 27 U. S. 596
The appellee in these cases is the widow of Henry Foxall, and
the appellants in the first case are the trustees named in a
marriage settlement executed by Henry Foxall at the time of his
marriage with the appellee, and in the second they are the
trustees, executors, and legatees named in the will.
On the marriage of Henry Foxall with the appellee in England in
1816, a contract was entered into for an annual income of
�500 sterling, or $2,222.22, for the life of Mrs. Foxall, to
commence at his death; for her jointure, and in lieu of her dower,
and, on the decease of Mr. Foxall, the sum of $37,038, was then to
be raised and paid to the trustees for the purpose of securing the
same.
In the settlement it is declared that upon the treaty for the
marriage, it was agreed between the parties thereto, Henry Foxall
and Catharine Holland, that should she survive him, he would
provide and settle on her an annual income of �500 sterling,
equal to $2,222.22, in the nature of a jointure for life, and in
bar of dower; that he should devise to her his messuage in
Georgetown, and assign her his furniture and carriage for life in
increase of her jointure; that her property, which was wholly
personal, should vest in her, but that all future property should
be at her disposal as if she were a
femme sole; and that
the children of the marriage as well as a present daughter of Henry
Foxall should be dependent on him for support. The marriage
settlement also recites that in part performance of the same, Henry
Foxall had made his bond in the penalty of $74,116 to the trustees,
to be void on payment by his executors, within six months from his
death, of $37,038, with interest at six percent
It is then declared by the deed that in case the appellee should
survive said Henry Foxall, the said trustees should stand possessed
of said bond, and said $37,038 to be received by them
"upon trust to place out the same, when it shall come into their
hands, at interest on freehold securities or invest it or any part
of it in the purchase of stock of the United States of North
America or bank stock there, with the approbation of said Catharine
Holland, and to call in
Page 27 U. S. 597
and replace and reinvest the same and the produce thereof from
time to time upon or in such securities or stock, with the
approbation of said Catharine Holland, and to pay the interest and
dividends of the said sum, securities, or stocks from time to time
as the same should be received to her the said Catharine Holland or
her assigns, or permit her or them to receive such interest or
dividends for her life, for her separate use,"
&c. And after her death upon trust to pay, transfer, and
assign said $37,038, and the securities or stocks in or upon which
it should be placed out or invested, and the dividends, &c.,
unto the executors or assigns of the said Henry Foxall.
Mr. Foxall died in England in 1823, having left a will dated 12
April, 1823. The first clause in the will is in these words:
"First, I do hereby ratify and confirm in every respect the
settlement made upon my marriage with my dear wife Catharine, and
do direct the provisions and trusts of the same and the condition
of the bond entered into by me upon my said marriage, to be
faithfully performed and observed:"
and afterwards,
"I do further direct that if the sum of $37,038, secured to be
paid to the trustees of said settlement, should at any time and
from time to time be found insufficient to raise, within these
United States and bring into the hands of the said trustees of said
settlement there the clear annual sum of $2,222.22, the annuity
secured to be paid to my said wife by the said settlement, then and
in such case the trustees of this my will do and shall from time to
time transfer to themselves, as trustees of said settlement, out of
the residuum of my estate, such sum or sums of money as may from
time to time be found necessary to make up any deficiency there may
happen to be between the current amount of the interest and produce
of said principal sum and the amount of said annuity, so as that in
no event less than the said sum of $2,222.22 shall be annually
raised for my said wife, or for her benefit within the United
States."
He also gives her, over and above the provisions made for her
benefit by said settlement, a legacy of $500, the
Page 27 U. S. 598
plate, &c., purchased since the marriage, and all his
servants.
He then gives the $37,038 "stipulated to be raised and paid to
the trustees of his marriage settlement" after the death of his
said wife "to the children of the marriage absolutely," and if
none, directs it after the death of his wife to sink into the
residuum of his estate.
The will contained a proviso that any depreciation in the value
of his property should be borne equally by all his legatees,
"
his wife, and any child or children he might have by her,
excepted."
Hoffman, Smith, McCall and McKenney were appointed executors of
the will. There were no children of the marriage, and but one
daughter, Mrs. McKenney, by a former wife. The estimate placed by
Mr. Foxall upon his property at the time of his decease was
$270,000. In December, 1827, the trustees valued the real estate at
$70,000 and the personalty at $88,000.
At the decease of Mr. Foxall in 1823, $32,645 of six percent
stock of the United States stood in his name, and at that time the
government stocks were as much above par as they were when this
bill was filed. Mr. Foxall was at that time well acquainted with
the price of government stocks and of the stocks of the local
banks, the latter of which, it was in evidence, could have been
purchased at that time at ninety-six percent
On 17 July, 1824, Mrs. Foxall being then in England, the
executors addressed the following letter to her:
"The executors of your late husband are desirous of paying over
to the trustees of the marriage settlement the sum of $37,038
according to the directions in the will. It is deemed necessary
that you should give instructions to the trustees named in the
marriage settlement before they can feel themselves authorized to
invest the money. You will please to communicate, at as early a
date as convenient your wishes on this subject."
And on the same day the trustees addressed the following:
"The executors of your late husband, the Rev. Henry
Page 27 U. S. 599
Foxall, are ready to pay over to us, the trustees named in the
marriage settlement, the sum of $37,038 for the purpose of
providing the annuity secured to you in said settlement. In said
settlement it is stipulated that we are to place it out"
"at interest on freehold security, or invest it, or any part of
it in the purchase of stock of the United States of North America,
or bank stock there, with the approbation of Mrs. Foxall."
"We are therefore compelled to wait for your instructions. The
will, you will doubtless have perceived, has made provision that in
case the said fund of $37,038 should not produce in interest, the
annual payment to be made to you of $2,222.22, there shall be
provided from his estates whatever may be deficient, so that in no
case shall you receive a less amount."
"It is presumed, therefore, you will give the trustees a general
authority to manage said trust fund so as to produce the best
interest which can be safely done; unless such general authority be
given, we should have to wait for new instructions whenever any
payment of principal may come into our hands. It is highly probable
that when you answer the letter sent with a copy of the will, you
will give such directions as we have alluded to. If you have not,
you will perceive the necessity of having it done without delay, as
we cannot move in the business until we have your directions, which
may be given either by letter or any other authentic writing. It
will be necessary, in case you do not come to this country, that
you authorize some person here to receive for you the annuity, as
we are bound to pay it within the United States. We are thus
particular, as it takes at least three or four months to get an
answer from the interior of England."
To these letters the following answer was written by Mrs. Foxall
and received by the executors and trustees:
"Gentlemen: In reply to your letter of 17 July last, in which
you request my approbation relative to the investment of the
$37,038, to provide my annuity according to my marriage settlement,
I acquaint you that in the judgment of my late husband and
according to my own, the stock of the United States of North
America is
preferred by
Page 27 U. S. 600
me to freehold security or bank stock, and that I shall
approve of the investment of the principal sum in that fund, and
not on real security or bank stock, and beg it may be so
invested."
Mrs. Foxall returned to the United States in December, 1824, and
a similar application was made to her by the trustees, with the
same effect, and she remained in the belief that the investment was
made according to her wishes in stocks of the United States.
$10,645, six percent stock, were afterwards paid off by the
government without the knowledge of Mrs. Foxall, and of this sum
$10,000 was also, without her knowledge, loaned to one of the
trustees and to another person on their promissory note, secured by
a pledge of $12,000 stock of the Farmers' & Mechanics' Bank of
Georgetown.
In 1826, Mrs. Foxall came to know that no separate investment
had been made for her annuity, and she then, in writing, requested
that the sum of $37,038 should be invested in stock of the United
States for that purpose. This was refused by the executors and
trustees, they contending that the right was with them to make the
investment as they should think best, free from the control of Mrs.
Foxall and without her approbation.
Upon this refusal, Mrs. Foxall filed the bill in the circuit
court against the trustees, claiming to have the provisions of the
marriage settlement carried into effect and to have the amount of
the same invested in some of the government stocks in her and their
joint names. The bill calls for a discovery where the $37,038 had
been invested, and to whom in particular it had been loaned, and
for general relief.
The trustees, in their answer, submit themselves to the court,
admitting they have ample funds for the purpose, but raise the
question whether Mrs. Foxall has the right to have the $37,038
invested in the stock of the United States, referring to a
cross-bill filed by them for the reasons why they suppose she has
not that right. They state that $22,000 was then invested in United
States stock, and that all the residue of the personal estate was
in their hands and vested in real
Page 27 U. S. 601
securities of the most undoubted safety, producing an interest
of six percentum per annum.
They deny the right of Mrs. Foxall to the benefit of the
provision of the settlement requiring her approbation to the
investment, and of that of the will throwing the loss of such
investment upon the residue of the estate, averring them to be
inconsistent, and require that she be held to elect between them.
And that if her bill, already filed, be considered as an election
to take under the settlement and the investment prayed by her shall
be decreed, that it shall be further decreed that she shall receive
the interest of the same, so to be invested, in bar of all claim
upon the residuum of the estate, under the provision of the will
for any deficiency.
In December, 1827, a statement was filed by the trustees showing
the nature of the securities in which the estate was invested and
to whom the moneys paid in had been loaned.
The trustees in the marriage settlement, the executors of the
will of Mr. Foxall, and the daughter of Mr. Foxall with her husband
Samuel McKinney, filed a bill against Mrs. Foxall, the appellee,
the object of which is to keep the $37,038 in the hands of the
trustees of the will mixed up with the general mass of Mr. Foxall's
estate, and to prevent the investment of that sum in the stock of
the United States, because, so invested, the stocks being above
par, it would not produce the full amount of the annuity. The bill
denies the right of Mrs. Foxall to select the fund for the
investment of the sum of $37,038, and asserts that if she has that
right, she must forego the same in order to enjoy the benefit of
the provisions in the will, asserting that the testator, by
inserting that clause in his will, providing that every deficiency
in the amount of the annuity should be borne by his general estate,
intended to curtail the rights of the settlement, and that she must
be put to her election between the provisions of the will and those
of the settlement.
The answer of Mrs. Foxall to this bill denies the inconsistency
between the provisions of the settlement and the will; contends
that she is entitled to the benefit of both; that the has a right
to choose the funds for investment, and to call on the residuum of
the estate to make good the deficiency
Page 27 U. S. 602
that may arise from its not producing six percentum to pay her
annuity, and declaring that her husband always advised and
recommended her to invest it in United States stock, and intimates
her desire to insist on its being so done, even if the loss to
arise from it is to fall upon her.
The causes were, by consent, heard together in the circuit
court, and that court decreed in the first cause that the
investment of the $37,038 should be made as she desired and the
interest paid annually to her, and that if such interest fell short
of producing $2,222.22 (that is, 6 percent) per annum, the
deficiency should be paid to her annually out of the residuum of
the estate in the hands of the trustees.
In the second case, the court decreed the bill to be
dismissed.
From these decrees the defendants in the court below in the
first case, and the complainants in the second case, appealed to
this Court.
Page 27 U. S. 603
MR. JUSTICE THOMPSON delivered the opinion of the Court.
These cases come before the Court of Appeal from the Circuit
Court of the District of Columbia, and have been argued together.
The first was a bill filed by Mrs. Foxall against the appellants as
trustees in a marriage settlement contract entered into between her
and her late husband, Henry Foxall, deceased. The object of this
bill was to compel the trustees to carry into effect the marriage
contract, according to her construction of it, by separating
$37,038 from the general mass of her late husband's estate and
investing the same in stock of the United States.
The appellants, in their answer, admit that they have received
funds of the estate of Henry Foxall to a much larger amount than
the $37,038, but allege that they are also trustees under the
provisions of the will of Henry Foxall, and have not invested it in
stock of the United States because it could not be done without
great loss and that they considered such an investment injudicious
and prejudicial to the estate and to the rights of others
interested in the residuum of the estate and its income. And they
aver that they have securely vested in real securities and bank
stocks producing an interest of six percent the whole of the
personal estate, except $22,645 in United States stock purchased by
H. Foxall in his lifetime. They admit they have ample funds, and
are willing to make the investment required by the appellee if the
construction of the deed of settlement which she contends for
should be deemed by the court to be correct.
With this answer and referring to it was filed the cross-bill in
the second cause, in which the trustees in the marriage settlement,
and Samuel McKinney, who are the executors named in the will of
Henry Foxall, together with
Page 27 U. S. 604
sundry other persons who are the
cestui que trusts
under the will are complainants and Catharine Foxall defendant.
In this bill, the appellants set forth the will of Henry Foxall
and aver that by it the whole real and personal estate of the
testator is bound to secure to the appellee her annuity. That the
investment in United States Stock of the $37,038 would occasion a
loss in the income of the whole estate of six or seven hundred
dollars a year, which would fall, according to the will, upon the
other
cestui que trusts. They deny the right of the
appellee to claim the benefit of the provision of the settlement
requiring her approbation to the investment, and also that of the
will to make up the deficiency, and thereby throwing the loss of
such investment upon the residue of the estate, averring the two
provisions to be inconsistent and requiring the appellee to elect
between them, and praying that if her bill, already filed, be
considered an election to take under the settlement, and the
investment prayed by her shall be decreed, that it may be further
decreed that she shall receive the interest of the same, so to be
invested, in bar of all claim upon the residuum of the estate,
under the provisions of the will for any deficiency.
The answer in this case denies the inconsistency between the
provisions of the will and the marriage settlement and claims that
the appellee is entitled to the benefit of both. That she has the
right to choose the funds for investment and to look to the
residuum of the estate to make good the deficiency that may arise
from the investment not producing six percent, so as to pay her
annuity of $2,222.22.
The court below decreed in the first cause that the appellants,
as trustees in the will, should transfer to themselves, as trustees
in the marriage settlement, the sum of $37,038 and should invest
the same in the purchase of stock of the United States and pay the
dividends from time to time, as received, to Catharine Foxall, for
and during the term of her life, and that the appellants should
make the investment of the said principal sum, jointly to the names
of themselves and the said Catharine, and cause the trust upon
which the same is to be invested, to be expressed in the
certificates of investment, and upon the books of the Treasury
Department. And
Page 27 U. S. 605
further, in case the said principal sum of $37,038, so invested,
should be found insufficient to raise and pay the annuity of
$2,222.22, that the deficiency should from time to time be made
good out of the residuum of the estate, &c. And in the second
cause, the court decreed the bill to be dismissed. From both these
decrees, appeals have been brought to this Court.
The two questions which arise upon these cases are:
1. Whether the appellee, Mrs. Foxall, has a right, under the
marriage settlement, to require the trustees to separate the
$37,038 from the general mass of the estate, and invest the same in
stock of the United States.
2. If such investment should be insufficient to pay her the
annuity of $2,222.22, has she a right to have the deficiency made
up, out of the general estate, either under the marriage settlement
or under the will of her deceased husband.
The answers to these questions will depend upon the construction
to be given to the marriage settlement, and the will of Henry
Foxall.
The settlement recites that a marriage was intended to be
solemnized between Henry Foxall and the appellee, then Catharine
Holland; that upon the treaty for such marriage, it was agreed
between the said Henry Foxall and Catharine Holland, that he should
provide and settle on her, in case she should survive him, an
annual income of $2,222.22, equal to �500 sterling, in the
nature of a jointure for her for life, and in bar of dower &c.,
and also reciting that in part performance of said agreement, the
said Henry Foxall had made his bond, in the penalty of $74,116, to
the trustees named in the settlement, to be void on payment by his
executors, within six months from his death, to the said trustees
of $37,038, with interest at six percent from his decease. It is
then declared by the deed that in case the said Catharine Holland
should survive the said Henry Foxall, the trustees should stand
possessed of said bond, and the $37,038, to be received by them,
upon trust, to place out the same, when it shall come into their
hands at interest on freehold securities, or invest it or any part
of it, in the purchase of stock
Page 27 U. S. 606
of the United States of North America, or bank stock there, with
the approbation of said Catharine Holland, and to call in and
replace, and reinvest the same, and the produce thereof, from time
to time, upon or in such securities or stock, with the approbation
of the said Catharine Holland, and to pay the interest and
dividends of said sum, securities or stocks from time to time, as
the same shall be received, to her or her assigns, or permit her or
them to receive such interest or dividends for her life for her
separate use.
That the appellee has a right to require the $37,038 to be
separated from the general mass of the estate, and invested in
funds for her use, according to the trusts declared in the marriage
settlement, cannot admit of a doubt.
The circumstance that the trustees are also executors named in
the will cannot affect the rights of Mrs. Foxall. This contract was
entered into in the year 1816, long before the will was made, or it
could be known who would be appointed executors, and besides, the
trustees are not the only executors. But it would be immaterial if
they were. They are acting in separate and distinct capacities, and
are bound to execute the respective trusts according to the
provisions of the marriage settlement and the will. This settlement
was accompanied with a bond given by H. Foxall, by which he bound
his executors to pay over to the said trustees the $37,038, within
six months from his death. And the settlement declares that the
trustees shall stand possessed of said bond, and the $37,038 to be
received by them upon trust to place out the same, when it shall
come into their hands, at interest, &c., in the manner therein
directed. Whether Mrs. Foxall had a right to control the investment
of this money when it came into the hands of the trustees, may
admit of more doubt.
The trust declared is that the $37,038, when it shall come into
the hands of the trustees, shall be placed out at interest on
freehold security, or invested in the purchase of stock of the
United States of North America, or bank stock there,
with the
approbation of the said Catharine Holland, and the
re-investments, when necessary, were to be made in like manner with
her approbation, and the interest and
Page 27 U. S. 607
dividends to be paid to her during her life for her separate
use.
The question is not whether she is at present in danger of
losing her annuity, nor does she in her bill charge the trustees
with misconduct. She is, in judgment of law, a purchaser of this
annuity, her rights rest in contract, and she seeks to have that
contract carried into execution. And whether this will work an
injury to third persons or not cannot control her rights, secured
to her by the marriage settlement. When this contract was entered
into, there was no existing interest in any third parties. And no
subsequent act of one of the contracting parties, can change the
rights of the other. This fund, or the securities or stock in which
it should be invested, were, after her death, to be transferred to
the executors or assigns of Henry Foxall. But no disposition which
he could make of them could abridge the rights of Mrs. Foxall under
the settlement. What then is to be understood by the stipulation,
that the investment was to be made
with her approbation?
That she was to have some agency in this investment, cannot be
questioned. And is it an unreasonable interpretation to say that
she was to have a controlling agency, within the limitation
prescribed by the contract. She has not an arbitrary and unlimited
discretion. The investment is restricted to three objects: freehold
securities, United States stock, or bank stock, and the trustees
are not authorized to make any other investment. Nor can she
approve or disapprove of any other. All such acts, both in them and
her, would be without authority. She is the party beneficially
interested in the investment, and it is fairly to be presumed that
her intended husband meant to leave it to her to elect between the
different objects of investment. It cannot be presumed that she
would withhold her approbation from all, and if she did, the loss
would be her own, and not to the prejudice of anyone else. It is
very probable that different persons, with equally honest and
upright motives, might differ in opinion with respect to the three
different modes of investment pointed out in the settlement. And
when that occurs between Mrs. Foxall and the trustees, one
Page 27 U. S. 608
or the other party must yield, and the contract must determine
their respective rights. That declares that the investment is to be
made with her approbation, which would seem necessarily to imply
that it could not be made without it, and at all events not
directly against it. And such appears to have been the construction
put upon it by the trustees themselves. For in July, 1824, after
the death of her husband, they wrote her two letters, one in their
character of executors and the other as trustees in the settlement.
In the first, they say,
"The executors of your late husband are desirous of paying over
to the trustees of the marriage settlement the sum of $37,038,
according to the directions of the will. It is deemed necessary
that you should give instructions to the trustees named in the
marriage settlement,
before they can feel themselves authorized
to invest the money."
And in their letter, written as trustees, they say
"The executors are ready to pay over the sum of $37,038 to the
trustees named in the marriage settlement for the purpose of
providing the annuity secured to you in the settlement. In which it
is stipulated that we are to place it out at interest, on freehold
security, or invest it in the purchase of stock of the United
States of North America or bank stock there with the approbation of
Mrs. Foxall.
We are therefore compelled to wait for your
instructions."
In September following, she answered their letters, in which she
says
"I acquaint you that in the judgment of my late husband,
according with my own, the stock of the United States of North
America is preferred by me, to freehold security or bank stock, and
that I shall approve of the investment of the principal sum in that
fund, and not on real security or bank stock, and beg it may be so
invested."
We think the trustees were bound to make the investment
according to this request. That it was a right secured to her under
the marriage settlement.
We will not say but that a state of things might exist in which
a court of chancery would be authorized to control her election, as
if she should act from mere caprice, and with a manifest purpose of
throwing a loss upon the residuum
Page 27 U. S. 609
of the estate. But there is nothing in this case to warrant such
an imputation against her. And it is not very certain that she even
erred in judgment if she had herself to sustain the loss. The
object of the settlement was to give her a certain, safe, and
secure income. And it was not unreasonable for her to place more
confidence in government stock than in mortgages, where it is well
known there is less punctuality in the payment of interest or in
bank stock, with the hazard of insolvency. She acted, as she states
in her letter to the trustees, according to the judgment of her
late husband, and which no doubt had great influence with her in
preferring such investment. And the sincerity of his advice is
manifest from the circumstance that he left, as a part of his
estate, upwards of $32,000 in United States stocks.
2. The next inquiry is whether, if the investment of the $37,038
in stock of the United States should be insufficient to raise the
annuity of $2,222.22, the deficiency is chargeable upon the
residuum of the estate.
In determining this question, it is unnecessary to say, how it
would stand if the claim rested entirely upon the marriage
settlement.
The provision intended to be made for Mrs. Foxall was clearly an
annuity, and where that is the nature of the settlement, the cases
in the books are very strong to show how far courts of equity will
go to guard against any deficiency. But in the present case, the
will of Henry Foxall puts that question at rest.
This will bears date 12 April, 1823, the first part of which is
as follows:
"I do hereby ratify and confirm in every respect the settlement
made upon my marriage with my dear wife Catharine, and do direct
the provisions and trusts of the same, and the conditions of the
bond entered into by me upon my said marriage, to be faithfully
performed. I do further direct that if the sum of $37,038 secured
to be paid to the trustees of said settlement, should at any time,
and from time to time be found insufficient to raise within these
United States and bring into the hands of the said trustees of said
settlement, there, the clear annual sum
Page 27 U. S. 610
$2,222.22, the annuity secured to be paid to my said wife by the
said settlement, then and in such case the trustees of this my will
do and shall from time to time transfer to themselves as trustees
of said settlement, and out of the residuum of my estate, such sum
or sums of money, as may from time to time be found necessary, to
make up any deficiency there may happen to be between the current
amount of the interest and produce of said principal sum, and the
amount of said annuity, so as that in no event less than the said
sum of $2,222.22 shall be annually raised for my said wife or for
her benefit within the United States."
It is difficult to conceive how a more ample provision could
have been made to secure to the appellee the full amount of her
annuity, and is a strong corroboration of what she stated to the
trustees, that in selecting United States stock for the investment,
she acted in accordance with the judgment of her late husband. For,
it is admitted that when the will was made, government stock was
above par, and that the stock of the local banks of the District of
Columbia might be so purchased as to pay six percent interest, and
that this was known to the testator, H. Foxall. A deficiency must
therefore necessarily arise from an investment in government stock,
but not from an investment in bank stock, and his being so very
particular in providing by his will for a deficiency, shows he had
reasons to believe it would occur.
It has been urged by the appellants' counsel that the provisions
of the deed of settlement and of the will are inconsistent, and
that the appellee is not entitled to the benefit of both, but must
make her election between them. That she cannot choose the fund for
investment under the deed and throw the loss from such investment
upon others under the will.
It is not perceived how this can in any sense be considered a
case for election. There is no inconsistency whatever between the
two provisions. The will expressly refers to and confirms the
settlement, and provides for any deficiency that might occur by
reason of an investment that would not raise the stipulated
annuity. There is nothing
Page 27 U. S. 611
in the will affording the least color for the conclusion that
the testator intended any provision therein made for his widow,
should be in satisfaction of the settlement, but clearly as an
accumulated bounty over and above it.
Again, it is said the will only authorizes payment of the
deficiency, when the funds shall be found insufficient to raise
within the United States the clear income of $2,222.22, and that
the proofs taken in the cause show that the funds are sufficient,
and are now so invested as to produce that sum. The answer to this
objection is given in the examination of the first point, that such
investment was not authorized under the marriage settlement, it
having been made without the approbation of the appellee, and
directly against her instructions. We are accordingly of opinion
that the appellee has a right to claim of the trustees in the
marriage settlement by virtue of the will of her deceased husband,
out of the residuum of his estate, whatever the annual amount of
the product of $37,038, invested in stock of the United States,
shall from time to time fall short of the annuity of $2,222.22,
secured to her in the marriage settlement.
The merits are therefore with the appellee in both cases, and
the only difficulty presented is as to the forms of the decree in
the first cause.
The bill in that case, filed by Mrs. Foxall, is founded
altogether upon the marriage settlement. It prays a discovery as to
the situation of the fund of $37,038, and that the whole of it may
be invested in stock of the United States, and concludes with a
prayer for general relief, but sets up no claim under the will for
any deficiency.
It is in the cross-bill that the question in relation to the
deficiency arises, under the will. This bill was filed for the
purpose of compelling Mrs. Foxall to elect between the provisions
of the marriage settlement and those of the will. The appellants,
in their answer to the first bill, refer to the cross-bill and the
will set out therein, and pray that they may be taken as a part of
their answer, and that the two causes may be heard and determined
together. They are, however, two distinct causes, with additional
parties in the
Page 27 U. S. 612
cross-bill, and require separate decrees. The decree as to the
deficiency, cannot be sustained unless it can be done under the
prayer for general relief. There is no doubt but that, under the
general prayer, other relief may be granted than that which is
particularly prayed for. But such relief must be agreeable to the
case made by the bill, and there is nothing in the first bill to
sustain the particular relief granted as to the deficiency. This
part of the deed must therefore be
Reversed. The residue is affirmed, omitting the name of Mrs.
Foxall in the investment directed to be made. There is nothing in
the marriage settlement which entitles her to be joined with the
trustees in the investment.
In the other cause, the decree dismissing the bill is
affirmed.
In the first case, the following decree was rendered.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof this Court is of opinion that
the decree of the said circuit court in this cause is erroneous in
this, that there is nothing in the first bill to sustain the
particular relief granted as to the deficiency, whereupon it is
considered, ordered and decreed by this Court that the decree of
the said circuit court, so far as it grants the particular relief
as to the deficiency in this cause, be, and the same is hereby
reversed and annulled, and that the residue of said decree in all
things else be, and the same is hereby affirmed, omitting the name
of Mrs. Foxall in the investment directed to be made, and that the
cause be and the same is hereby remanded to the said circuit court
for further proceedings to be had therein according to law and
justice.
