Where a married woman has power, under a marriage settlement, to
dispose of property settled upon her, by the execution of a power
of appointment for that purpose, and alleges afterwards that she
executed the power under undue marital influence and through fraud
practiced upon her, but alleges no specific mode or act by which
this undue marital influence was exerted, and the facts disclosed
in the testimony go very far to contradict the allegation, the
charge cannot be sustained.
Every
feme covert is presumed, under such a settlement,
to be, to some extent, a free agent.
Where the marriage settlement recited that the woman was
possessed of a considerable real and personal estate, which it was
agreed should be settled to her sole and separate use with power to
dispose of the same by appointment or devise, and then directed
that the trustee should permit her to have, receive, take, and
enjoy all the interest, rents, and profits of the property to her
own use, or to that of such persons as she might from time to time
appoint during the coverture, or to such persons as she, by her
last will and testament, might devise or will the same to, and in
default of such appointment or devise, then the estate and premises
aforesaid to go to those who might be entitled thereto by legal
distribution -- this deed enabled her to convey the whole fee,
under the power, and not merely the annual interest, rents, and
profits.
Where the marriage settlement gave her the power of appointment
to the use of such persons as she might from time to time appoint,
during the coverture, by any writing or writings under her hand and
seal, attested by three credible witnesses, and she executed a deed
which recited that the parties had thereunto set their bands and
seals, and which the witnesses attested as having been sealed and
delivered, this was a sufficient execution of the power, although
the witnesses did not attest the fact of her signing it.
The authorities upon this point examined.
Page 49 U. S. 11
The facts of the case were these:
On 20 October, 1824, a marriage being about to take place
between Joseph B. Ladd and Harriet V. Nicoll, both of the Town of
Alexandria, the following marriage settlement was executed by those
parties:
"This indenture tripartite, made this twentieth day of October,
in the year of our Lord eighteen hundred and twenty-four, between
Joseph B. Ladd, of the Town of Alexandria, of the first part,
Harriet V. Nicoll, of the town aforesaid of the second part, and
John H. Ladd, of the town aforesaid, of the third part. Whereas a
marriage is shortly to be had and solemnized, between the said
Joseph B. Ladd and Harriet V. Nicoll; and whereas the said Harriet
V. Nicoll is now possessed of a considerable real and personal
estate, which it has been agreed between her and the said Joseph B.
Ladd should be settled to her sole and separate use, with power to
dispose of the same, by appointment or devise; and whereas the said
Joseph B. Ladd has agreed to add to the property of the said
Harriet V. Nicoll one hundred and sixty-two shares of the
Alexandria and Washington Turnpike Company, and the premises
hereinafter described, now occupied by Dr. Vowell, which is
likewise to be settled in manner aforesaid, with this
understanding, that in case the said Harriet V. Nicoll should,
after the intended marriage had, happen to survive the said Joseph
B. Ladd, she shall not have or claim any part of the real or
personal estate whereof the said Joseph B. Ladd should die seized
or possessed, or entitled to, at any time during the coverture
between them, by virtue of her dower, or title of dower at common
law, or by virtue of her being administratrix, or entitled to the
administration of the goods and chattels, rights and credits, of
the said Joseph B. Ladd, or in any other manner whatever. Now this
indenture witnesseth, that in pursuance of the agreement aforesaid,
and of the sum of five dollars to him in hand paid at and before
the sealing and delivery of these presents, the receipt whereof is
hereby acknowledged, the said Joseph B. Ladd hath given, granted,
bargained, and sold, and by these presents doth give, grant,
bargain, sell and convey, unto the said John H. Ladd, his heirs and
assigns forever, a house and lot situated upon the north side of
King Street, and to the westward of Pitt Street, in the said Town
of Alexandria, and bounded as follows, to-wit:"
"Beginning upon King Street, four feet to the eastward of the
center
Page 49 U. S. 12
of the square formed by Pitt and St. Asaph Streets, and running
thence eastwardly with King Street, and bounding thereon
twenty-three feet nine inches, be the same more or less; thence
northwardly with a line parallel to Pitt and St. Asaph Streets, one
hundred and nineteen feet; thence westwardly and parallel to King
Street, the length of the first line; thence southwardly with a
straight line to the beginning; also one hundred and sixty-two
shares of Alexandria and Washington Turnpike Company; and the said
Harriet V. Nicoll, in consideration of the agreement aforesaid, and
of the sum of five dollars to her in hand paid, at and before the
sealing and delivery of these presents, the receipt whereof is
hereby acknowledged, hath granted, bargained, sold and conveyed,
and by these presents doth grant, bargain, sell, and convey, unto
the said John H. Ladd, his heirs and assigns forever, the following
property, to-wit: all that property situated on the east side of
Union street, long known by the name of Conway's Wharf, with the
warehouses, dwelling houses, docks, and appurtenances thereto
belonging, as it was devised by the late Richard Conway to Joseph
Conway, deceased, from whom it descended to the said Harriet V.
Nicoll -- also, one lot of ground on the west side of Union street,
purchased by the said Joseph Conway of Thomas Conway, by indenture,
now of record, in the County of Alexandria; also, all right, title,
interest, claim, or demand of the said Harriet V. Nicoll, under the
will of her late husband, William H. Nicoll, of Northumberland
County, Virginia, or that may have descended to her from her
father, Joseph Conway, deceased, or from her mother, or from any
other person. To have and to hold all and singular the property
hereby conveyed unto him, the said John H. Ladd, his heirs,
executors, administrators, and assigns, to his and their only use
forever; upon such trusts, and for such uses, intents, and
purposes, as are hereinafter mentioned; that is to say, in trust,
for the use of the respective parties who have conveyed the same
until the solemnization of the intended marriage, and from and
after its solemnization, then upon the trust that the said John H.
Ladd, his heirs, executors, and administrators, shall and do permit
the said Harriet V. Nicoll, the intended wife, to have, receive,
take, and enjoy, all the interest, rents, and profits of the
property hereby conveyed to and for her own use and benefit, or to
the use of such person or persons, and in such parts and
proportions, as she, the said Harriet V. Nicoll, shall appoint from
time to time, during the coverture, by any writing or writings
under her hand and seal, attested by three credible witnesses, or
to such person or
Page 49 U. S. 13
persons as she, by her last will and testament in writing, to be
by her signed, sealed, published, and declared, in the presence of
the like number of witnesses, may devise or will the same to; and
in default of such appointment or devise, then the estate and
premises aforesaid to go to those who may be entitled thereto by
legal distribution; it being the intent of the parties that none of
the property hereby conveyed shall be at the disposal of, or
subject to, the control, debts, or engagements of the said Joseph
B. Ladd."
"In testimony whereof, the said parties have hereunto set their
hands and seals, the day and year first before written."
"JOSEPH B. LADD, [SEAL]"
"HARRIET V. NICOLL [SEAL]"
"JOHN H. LADD [SEAL]"
On 1 November, 1824, Joseph B. Ladd, in conformity with the
above agreement, transferred to John H. Ladd, the trustee, one
hundred and sixty-three shares in the Washington and Alexandria
Turnpike Company, being one share more than he had stipulated to
transfer.
On the 2 of January, 1827, Harriet V. Ladd, by writing under her
hand and seal, executed in the presence of three witnesses, and
reciting that it was in pursuance and in execution of the power
reserved to her in her marriage settlement, directed the trustee to
transfer and assign to John Hooff, cashier of the Farmers' Bank of
Alexandria, one hundred and sixty-two shares of the aforesaid
turnpike company, "forever thereafter to be and inure to the
benefit of the said John Hooff."
On the same day, the trustee made the transfer, as directed.
In October, 1827, the following proceedings took place at the
Farmers' Bank of Alexandria, and appear upon the minutes of the
Directors.
"It is proposed to lend Joseph B. Ladd upon his note, endorsed
by John H. Ladd, the sum of $7,000, provided the board shall be
satisfied that the real security he may offer shall be good
security for that sum -- decided in the affirmative."
"Oct. 9, 1827 -- The loan provisionally granted to Joseph B.
Ladd on the 1st instant, being under consideration, a deed of trust
to John Hooff, trustee, signed by John H. Ladd and Harriet V. Ladd,
and dated the 9 October, 1827, containing a description of the
property intended to be conveyed as collateral security for the
said loan, having been laid before the board, read, and considered,
and upon the question, Shall the said property be deemed good
security for the said loan of $7,000? the vote was in the
affirmative. "
Page 49 U. S. 14
"Resolved, therefore, that the loan of $7,000 be made to the
said Joseph B. Ladd, upon the conditions contained in the said
deed, and upon the further consideration that the said Joseph B.
Ladd cause the property contained in the deed to be regularly
insured, and the policies assigned over to the trustee, John Hooff;
upon this resolution John C. Vowell, Reuben Johnston, John H. Ladd,
and Samuel Messersmith, voted in the affirmative; in the negative,
Rd. M. Scott."
The deed referred to in the above proceedings, reciting the
marriage settlement, conveyed to Hooff all that part of the wharf
called Conway's Wharf, lying on the east side of Union street, in
the said Town of Alexandria, as the same was devised by the late
Richard Conway to the said Joseph Conway, the father of the said
Harriet, with all buildings &c., being the property described
in, and conveyed by, the marriage, settlement, and then proceeded
thus:
"And whereas the Farmers' Bank of Alexandria has agreed to loan
to the said Joseph B. Ladd the sum of seven thousand dollars, or
such part of that sum as he may require, on his notes, to be
endorsed by the said John H. Ladd, and discounted at said bank, and
to be renewed from time to time, under the endorsement of the said
John H. Ladd, or of such other person or persons as the board of
directors of said bank may from time to time approve of, according
to the usages of said bank, on the following terms and conditions:
that is to say, that the said loans and discounts, or interest to
become due thereon, shall be secured by an effectual lien on the
premises before described; that on the said notes being regularly
renewed, and kept up, and on the said interest or discounts being
punctually paid on such renewals, and on one thousand dollars of
the principal being paid within two years from the date hereof, the
said Joseph B. Ladd shall be allowed the further term of one year,
that is to say, three years from the date hereof, for the payment
of the residue of said loan, and if within the said third year the
said Joseph B. Ladd, his executors or administrators, shall pay to
the said bank the further sum of two thousand dollars, and shall
pay and discharge the interest or discounts on the said notes as
they shall be renewed, then that the time of the payment of the
residue of said loan shall be extended one year further, that is to
say, for the term of four years from the date hereof, he, the said
Joseph, his executors or administrators, paying the interest or
discounts on the said notes as they shall be renewed during the
said fourth year; and if, within the said fourth year, the said
Joseph shall pay the further sum of two thousand dollars of the
principal of said debt, then that the time of the payment of the
residue
Page 49 U. S. 15
of the said debt shall be extended one year further, that is to
say, for the term of five years from the date hereof; the said
Joseph, his executors or administrators, paying the discount or
interest on the notes offered for renewal as the same shall be
discounted."
The deed then directed that if the payments mentioned above were
not made, Hooff was to sell the property,
"provided, however, that the same shall produce enough to pay
and satisfy the whole amount of said loan which shall not be paid,
with all discounts and interest which shall be due thereon, and all
reasonable charges and expenses of sale."
It contained also this important declaration and condition:
"And the said Harriet V. Ladd, in execution of the power of
appointment to her reserved as aforesaid, does hereby direct and
appoint the premises herein described to be held by the said John
Hooff and his heirs on the uses and for the purposes and trusts
before recited."
This deed was signed and sealed by the parties thereto, with a
memorandum underwritten in these words, in the usual place of
attestation -- "Sealed and delivered in presence of George C.
Kring, John McCobb, Matthias Snyder, Charles W. Muncaster, Jonathan
Field" -- and bore the certificate of the clerk that it was proved
as to John H. and Harriet V. Ladd, by three of the witnesses,
acknowledged by the trustee, Hooff, and ordered to be recorded.
On 13 April, 1829, Hooff retransferred to John H. Ladd, the
trustee, the one hundred and sixty-two shares of turnpike stock,
which the trustee had transferred to him on 2 January, 1827.
On the 30 April, 1829, Harriet V. Ladd directed the trustee to
transfer these shares to Sarah Ladd, which was accordingly done on
the same day.
On the 21st of November, 1829, Sarah Ladd transferred eighty
shares of this stock to the bank, and on the 6th of December
following, the remaining eighty-two shares to Sarah Easton
Ladd.
On 16 December, 1839, the following proceedings took place at
the bank:
"
Farmers' Bank of Alexandria, December 16,
1839"
"The president and cashier, having made arrangements for further
security on the debt of Joseph B. Ladd to this bank, having laid
the same before the board, it is ordered to be recorded as follows,
viz., The Farmers' Bank of Alexandria, having this day
received from Mrs. Sarah Ladd a transfer of eighty
Page 49 U. S. 16
shares of stock in the Washington and Alexandria Turnpike
Company, as further security for the payment of Jos. B. Ladd's
note, amount six thousand dollars, due the said bank and unpaid,
with an understanding the stock is not to be sold in less than two
years from this date, and then to be applied towards the payment of
said note of six thousand dollars, but the said Mrs. Sarah Ladd may
direct the payment of the proceeds of said stock at any time
previous to the expiration of said term of two years at her
pleasure, and then to be applied towards the payment of said note
of Joseph B. Ladd, amount six thousand dollars."
"[Signed] JOHN C. VOWELL,
President"
"
Alexandria, November 21, 1839"
"Amended by introducing a clause that the bank shall not proceed
against the property in deed of trust, Conway's Wharf, until two
years from this date, and then stock to be sold, without Mrs. Sarah
Ladd should prefer to pay for the stock at the par value."
"A copy JOHN HOOFF,
Cashier"
On 27 July, 1842, Hooff advertised the real property conveyed to
him for sale, and sold it on 7 September, for $4,175, to Benoni
Wheat and John J. Wheat. Two days before the sale, Hooff by writing
consulted Mrs. Ladd respecting the terms of sale, and the parcels
in which the property should be sold, and received from her the
writing returned endorsed in these words: -- "I agree to the above
arrangement -- Harriet V. Ladd."
In February, 1843, Harriet V. Ladd, by her next friend,
Montgomery D. Corse, filed her bill in the circuit court against
her husband, the trustee, the bank, Hooff, and the Wheats.
The bill, after meeting the marriage settlement and the
marriage, alleges that under said contract she had no power to
convey or dispose of the property settled on her by way of
anticipation or otherwise. Nor had she power to appoint the use of
the income rents &c., to any person, for the debts or benefit
of her said husband.
That she was induced by the marital influence of her husband,
and with the knowledge and connivance of the said bank, to sign a
deed of trust to John Hooff, to secure a debt of her husband
endorsed by her trustee, which deed is witnessed by four persons in
manner and form as shown by the exhibit of it.
That no power is given to the trustee to convey the property,
nor could she authorize him, and that said deed of trust is
Page 49 U. S. 17
null and void, and was obtained by marital influence and
coercion, while living with her husband, and her husband did not
join in said deed, nor was she separately examined to ascertain if
she freely executed it &c., nor was authorized to execute said
deed, without all the forms were complied with.
That she is falsely made in said deed to say that she had
previously appointed under her power, when in fact she never had,
and that her husband and trustee were acting for their own personal
interest.
That said Hooff and said bank have caused the wharf lot to be
sold to Benoni Wheat, who holds the same in possession as his
property, and refuses to let your oratrix have the same.
That the said bank holds the shares of turnpike stock included
in the settlement, as security for the money loaned to her
husband.
That she was induced by marital influence to execute an
instrument dated 30 April, 1829, as will be shown, directing her
trustee to transfer 162 shares of turnpike stock to Mrs. Sarah
Ladd, to secure $4,000 loaned by her (as guardian to Sarah Easton
Ladd) to your orator's husband, and when the same should be paid to
be retransferred to the use of your orator.
That a settlement having taken place by which Sarah Easton Ladd
received 82 shares in full of her claim, the remaining 80 shares
were on 21 November, 1829, transferred by Sarah Ladd to said bank,
without any authority, and they were then the property of your
oratrix, and not of Sarah Ladd, as the bank well knew.
That all the said writings, transfers, and doings in the
premises were illegal, and in fraud of her rights secured to her by
said marriage contract -- that all the aforesaid actings and doings
in the premises, and every act and doing connected with the same,
by the aforesaid Joseph B. Ladd, John H. Ladd, John Hooff, Benoni
Wheat, and the said Farmers' Bank of Alexandria, were in violation
of her rights, and done to defraud her of that property and those
rights secured to her or intended so to be by the marriage contract
aforesaid.
That the said deed to Hooff, and the pretended assignment of the
turnpike stock, ought to be declared null and void as to your
oratrix, and she ought to be restored to her property and rights,
and quieted against all said parties, and that the dividends on
said shares received by said bank for at least four years ought to
be paid to her.
The bill then states the desertion of complainant by her
husband.
Page 49 U. S. 18
That the part of the property sold has not paid the debt, and it
will take the residue of her property to pay it. It prays that the
deed of indenture may be surrendered and cancelled, and that
complainant may be quieted against all the defendants in her
enjoyment of her said property; that the bank may assign the shares
of turnpike stock, or in default pay the value thereof and all
dividends received thereon, and it concludes with a prayer for
general relief.
In June and July, 1843, Hooff, the Wheats, and the bank filed
their answers. The husband and trustee did not answer the bill.
This answer denied the complainant's construction of the marriage
settlement, insisted upon the competency and regularity of the
appointment, and of all the proceedings had in pursuance thereof,
averred that the property could be applied to the payment of the
debt due to the bank with her consent; that she was
quoad
the property a
feme sole; that the loan was made to Joseph
B. Ladd on his notes, endorsed by the trustee, and upon the
security of the deed of trust; that the greater part of the money
was expended upon the improvement of the property which belonged to
her; that the complainant was privy and assented to the sale, and
set forth the facts connected with the transfer of the turnpike
stock, and denied all fraud or undue influence in bringing about
any of the transactions between the parties.
To all these several answers there was a general replication and
issue, and a commission was issued to take testimony, under which
the facts above stated, and those hereinafter adverted to, were
established in proof.
On 6 October, 1845, the cause came on for hearing, when the
circuit court dismissed the bill, with costs. The complainant
appealed to this Court.
Page 49 U. S. 27
MR. JUSTICE DANIEL delivered the opinion of the Court.
The important legal questions arising upon this record, and on
which the decision of the cause must depend, appear to be
these:
1st. The nature and extent of the estate embraced within the
power reserved to the feme by the marriage settlement,
viz., whether that power comprised as well real as
personal estate, or was limited to interest, rents, and profits
merely, and by name.
2d. The mode of appointment indicated by the marriage contract,
and whether this mode has been shown to have been either strictly
or substantially and fairly complied with in the requisites of
signing, sealing, and attestation.
Before proceeding to a particular examination of the questions
above stated, it may be proper to premise some observations with
respect to the charges in the bill, and first, of undue marital
influence, and secondly, of fraud as means employed in
accomplishing the wrongs to which the complainant alleges she has
been subjected, and against which she has sought relief. With
regard to the first of these alleged means, it must be remarked,
that no certain or specific mode or act, neither coercion,
allurement, nor willful misrepresentation or falsehood, is charged,
by which the free will, the judgment, or the inclination of the
complainant has been restrained or misled. Every
feme
covert is presumed, under a settlement like the one in the
present case, to be to some extent a free agent, and she must or
ought to be presumed to entertain dispositions of kindness towards
her husband. But if, in the indulgence of such dispositions, she
should make an unlucky or unprofitable appointment, it would be
carrying the principle of protection to an extreme destructive of
every conception of free agency, to determine that these untoward
results were in themselves proofs of undue marital influence. The
husband does not answer the bill in this case, and there is no
direct evidence introduced to sustain this charge as to him; but
some of the facts in the testimony go very far to contradict this
allegation -- as, for instance, the conduct of the feme, manifested
and repeated
Page 49 U. S. 28
long after the separation from her husband had at any rate
exempted her from any influence his presence and immediate agency
might have been supposed to exert. This same conduct of the
feme, her positive cooperation in the arrangements for the
sale of the property, and her acquiescence in that sale until after
the title had been made to the purchaser, furnish such presumption
of the absence of fraud in the transactions complained of, which,
if it is not absolutely conclusive, certainly calls for
contravening evidence of a direct and powerful character --
evidence of force sufficient to overthrow and set aside the
complainant's own acts and declarations. But independently of the
facts and circumstances just adverted to, the positive denial of
fraud in every answer in the cause, and the absence of any proof to
sustain it, should alone be taken as a complete refutation of the
charge.
We will not particularly consider the nature and extent of the
estate reserved to the complainant by the marriage settlement, and
which was embraced within her power to appoint, by a just
construction of that instrument. It is alleged in the bill that
this estate was limited to interest, as synonymous with income,
rents, and profits,
eo nomine, and did not extend to the
fee of the real estate, nor to the principal of the stock settled
to the uses of the marriage. By every sound rule of construction,
an instrument should be interpreted by the context, so as if
possible to give a sensible meaning and effect to all its
provisions and so as to avoid rendering portions of it
contradictory and inoperative by giving effect to some clauses to
the exclusion of others. Expounded by this rule, let us see what
will be the character of the estate here limited to the wife, and
what the extent of her power to appoint in relation thereto.
The deed of settlement begins by reciting
"That whereas the said Harriet V. Nicoll is now possessed of a
considerable real and personal estate which it has been agreed
should be settled to her sole and separate use, with power to
dispose of the same by appointment or devise."
The deed then sets forth the estate, real and personal, conveyed
by it, and enumerates the trusts created thereby, and amongst them
the one involved in this controversy, and differently interpreted
by the parties thereto, as follows,
viz.: that the
trustee
"shall and do permit the said Harriet V. Nicoll, the intended
wife, to have, receive, take, and enjoy all the interest, rents and
profits of the property hereby conveyed, to and for her own use and
benefit, or to the use of such person or persons, and in such parts
and proportions, as she, the said Harriet V. Nicoll, shall from
time to time during the coverture, by writing, appoint &c., or
to such person or
Page 49 U. S. 29
persons as she by her last will and testament &c., may
devise or will the same to, and in default of such appointment and
devise, then the estate and premises aforesaid to go to those who
may be entitled thereto by legal distribution."
Let it be here remarked that the object of the deed is declared
to be the settlement of the whole of the estate, real and personal,
upon the married woman, with power to dispose of the whole of it
either by appointment or devise. It will not be denied that this
investment of and authority over the whole estate, so explicitly
declared, might not have been modified or even revoked by
subsequent provisions of the same instrument; but certainly they
should be made to yield only to declarations equally explicit, or
to such as are absolutely contradictory to and irreconcilable with
them. Can it be correctly affirmed of the subsequent and specific
designation of the trusts in this deed that they are either plainly
contradictory or irreconcilable with the purposes of the settlement
previously and so explicitly declared? May not the term "interest"
contained in that enumeration, considered in its relative
collocation to the terms "rents" and "profits," be understood as
equivalent with the word "estate," especially when the terms
"rents" and "profits" may be correctly taken to cover interest
understood as mere revenue, and still more especially when we keep
in view the previous purpose set forth in the deed -- that of
settling on the
feme and subjecting to her disposition by
deed or will, the whole of her estate, real and personal? Certainly
there is nothing in the term "interest" incompatible with the
meaning of the terms "estate" or "property," for in an ordinary as
well as in a technical acceptation, "interest" may imply both
estate and property.
But there is another illustration of this matter which would
seem to put it beyond farther doubt that the power of appointment
in question cannot by any rational construction be restricted to
interest understood as revenue or money or to rents and profits
"eis nominibus." Let it be again remarked that by the preceding
part of the marriage contract, all the estate, real and personal,
was settled to the
feme, with power to appoint the whole,
without exception, by deed or will. Then, after the words which it
is insisted for the complainant restricted her power, we have, at
the conclusion of the deed, these words: "and in default of such
appointment or devise, then the estate and premises aforesaid to go
to those who may be entitled thereto by legal distribution." Now
the construction which would restrict her power to interest, rents,
and profits would seem as if intended to make the fee or
inheritance dependent upon the contingency of an appointment of
these mere chattel interests by the
feme if
Page 49 U. S. 30
she fail to appoint these, which alone it is insisted she had
power to appoint, then, as a condition or consequence, "the estate
and premises aforesaid" to go to those who may be entitled thereto
by distribution. Let it be supposed that, being thus restricted,
she does appoint these chattel interests; what then becomes of the
inheritance or fee? The
feme cannot, according to the
argument, control or appoint it either by deed or will; this, it is
said, is beyond her power. Does it not in this aspect of the case
descend, or become subject to distribution, precisely as it was to
do as the condition of nonappointment? So that, whether she
appoints or not, the fee or inheritance goes precisely the same
way. This construction renders the provisions of the marriage
contract useless and unmeaning. It contemplates on the part of the
wife an action wholly nugatory as to the ultimate disposition of
the fee, which it places entirely beyond her control either by deed
or by will, and leaves it to pass according to the law of
inheritance whether she be active or quiescent. This confusion and
obscurity in the construction of the contract is removed by taking
the context -- by connecting the first clear and positive
declaration of its objects,
viz., the settlement on the
feme of all her real and personal estate, and the power in her to
appoint the same by deed or will, with the concluding provision of
that contract, which declares that, in default of appointment or
devise, "then all the estate and premises aforesaid," covering the
whole deed; not the interest on money, not the dividends on stocks,
nor profits of any kind, but the whole estate conveyed and settled,
shall go to those who may be entitled thereto by legal
distribution. This construction gives consistency and meaning to
the entire contract and satisfies us that the power of appointment
reserved to the wife was coextensive with the whole estate and
subjects of the settlement.
It remains next to be considered whether the mode of appointment
prescribed or indicated by the marriage contract, whether the power
be construed in an extended or restricted sense, has been strictly
or fairly and substantially complied with. On behalf of the
appellant it is insisted that in the deed of October, 1827, from
John H. Ladd, the trustee in the marriage settlement, and Harriet
V. Ladd, to John Hooff, as trustee for the Farmers' Bank of
Alexandria, regarding that deed as an appointment by Mrs. Ladd,
under a competent power, still in its execution there has been such
a departure from the mode prescribed for the exercise of the power
by Mrs. Ladd, as renders her act wholly inoperative and void. The
marriage contract, after securing the property
Page 49 U. S. 31
settled to the use of the wife, proceeds thus:
"or to the use of such person or persons, and in such parts and
proportions, as she, the said Harriet V. Nicoll, shall appoint from
time to time, during the coverture, by any writing or
writings
under her hand and seal, attested by three credible
witnesses."
The deed to Hooff, it will be seen, after reciting that John H.
Ladd, the trustee in the marriage contract, in execution of the
trusts expressed and declared in the marriage contract, and for a
pecuniary consideration, does grant, bargain, and sell to Hooff,
and, after farther recital that
"the said Harriet V. Ladd, in execution of the power of
appointment to her reserved in the settlement, does hereby direct
and appoint the premises hereinbefore described to be held by the
said John Hooff and his heirs on the uses and for the purposes and
trusts before recited,"
concludes in the following language:
"In witness whereof, the said John H. Ladd, Harriet V. Ladd, and
John Hooff, have hereunto set their hands and seals the day and
year first before written."
Then, after the names and seals of the parties, are written, in
the usual place of attestation, these words: "Sealed and delivered
in presence of George C. Kring, John McCobb, Matthias Snyder,
Charles Muncaster, Jonathan Field."
Upon this state of facts, it has been contended that the
execution of the power was defective and null, inasmuch as the
power could be executed only by an instrument under the
hand
and seal of the married woman, and that the attestation of the
witnesses shows simply
a sealing and delivery of the deed
of appointment, and shows nothing in relation
to the
signing by the parties. Some objection was made in the
argument, founded upon the relative position of the names of the
attesting witnesses, as tending to produce uncertainty as to which
of the parties the witnesses meant to testify; but this objection,
whether or not under other circumstances it might have been of any
importance, was obviated by an exhibition in court of the original
deed, which it was admitted was the document before the court below
in the trial of this cause. In considering this objection to the
defective attestation of the instrument of appointment, it is to be
observed that the complainant, by her bill, does not impeach the
deed on any such ground; on the contrary, she expressly alleges
that this deed was
signed and executed by all the parties
thereto, and witnessed by the four persons whose names appear
thereon. Such being the state of facts, it may very properly be
questioned whether a party admitting and averring the execution of
an instrument, and impeaching only its fairness or its legal
operation, exhibiting nothing in the state
Page 49 U. S. 32
of the pleadings requiring his adversary to establish the
execution to such instrument can, even in the court of
original cognizance, be permitted to deny or question at the trial
the existence or execution of the document against his own averment
or admission. Such a proceeding would be a surprise in the court
below, but it would be still more so if, after the trial and
without even an exception endorsed upon the document, it could be
objected to before an appellate tribunal. There is no exception
taken to the form or attestation of this deed of appointment found
in the record before us. But was there not proof of the full
execution of this power, inclusive of signing, according to
approved legal intendment? One of the earliest cases, perhaps the
earliest, going directly to sustain the exception here urged to the
execution of the power, is that of
Wright v. Wakeford, 17
Ves. 454. In that case, as in the one before us, the contract
creating the power directed the appointment to be made by writing
or writings
under hand and seal, and in that case as in
this, the memorandum of attestation was in the words "sealed and
delivered," omitting to assert in terms the signature by the maker.
Lord Eldon forbore to decide whether this certificate or memorandum
embraced the signing as well as the sealing and delivery of the
instrument, and sent the case to the common pleas, who certified
(three of the justices, Heath, Lawrence, and Chambre, concurring
against the opinion of Mansfield C.J.), that in their opinion the
power had not been well pursued.
After
Wright v. Wakeford, followed the cases of
Doe
ex dem. Mansfield v. Peach, 2 Mau. & Sel. 576;
Wright
v. Barlow, 3
id. 512;
Doe ex dem. Hotchkiss v.
Pearce, 6 Taunt. 402. These cases rest upon
Wright v.
Wakeford, and some, if not all, of them refer to it expressly
as their foundation. But, even contemporaneously with the cases
just mentioned, it will be perceived that the courts have in some
instances sought to free themselves from these literal trammels of
Wright v. Wakeford, as too narrow to comprise the
principles of justice and common sense; for as early as 7 Taunt.
355, in the case of
Moodie v. Reed, which was sent from
the chancery the will was attested in this general phrase, "witness
&c.," by two witnesses. In the testimonium clause the testatrix
says, "These bequests are signed by me." Gibbs, C.J., said that
this was clearly a good attestation of the signing. Still later, it
has been ruled in several cases where the power required a will
signed and
published in presence of three witnesses, that
the attestation was good expressing the will to have been signed
and
delivered. The
Page 49 U. S. 33
evident disposition of the courts being to adopt the reason and
substance of the transaction, they have, as matter of construction,
determined that delivery was publication.
See 4 Sim. 558;
5
id. 118.
But whatever doubt may heretofore have overhung and perplexed
this matter, that doubt, so far as the reasonings of the English
bench should shed light upon the judicial mind of our country,
ought to be cleared away. This effect, we think, should be produced
by the arguments in the House of Lords of the assembled judges in
the case of
Burdett v. Spilsbury, reported in 6 Mann.
& G., beginning at 386. In this case, presenting, as of course,
an exhibition of great ability and learning, the execution and
attestation of appointments under powers are the subjects
considered. The cases from
Wright v. Wakeford down,
involving any important principle, are reviewed, and these subjects
placed upon the basis of common sense. It is true that the facts in
the case of
Burdett v. Spilsbury were not precisely those
of
Wright v. Wakeford, the attestation clause in the
latter being special and that in the former case not special; yet
in the examination of the latter case, and of those which have
followed and been rested upon it, their doctrines are discussed and
by a majority of the judges disapproved, several of the judges who
conceived themselves constrained to support
Wright v.
Wakeford, upon the maxim
stare decisis, expressing
their regret at the obligation supposed to be binding upon them,
and declaring that, were the case
res integra, they should
certainly reject its doctrines. The extended views of the judges in
Burdett v. Spilsbury cannot be given consistently with the
limits of this opinion, yet some of their illustrations of the
principles they maintain may properly be adverted to. And it will
be perceived that the substance and meaning of those principles are
comprised in the following positions:
1st. That the terms and modes prescribed in settlements for the
execution of powers should be followed in reason and substance, so
as to insure the purposes and objects contemplated by such
settlements, and so as to prevent them from being sacrificed to
mere literal severity of construction.
2d. That the memorandum of attestation to a deed or will,
whether that memorandum be general or special, is not conclusive as
to the ceremony of the execution of the instrument to which such
memorandum is annexed, but may be explained by the testimony of the
witnesses themselves, or by reference to the testimonium clause of
the instrument, as showing the facts and circumstances set forth in
that clause, and which the witnesses were called on to attest.
Page 49 U. S. 34
Thus in the case of
Burdett v. Spilsbury, 392,
Wightman, Justice, says
"The power requires that the instrument shall be signed, sealed,
and published by the testatrix in the presence of three witnesses,
and that they
shall attest the instrument. No form of
attestation would for the first thirty years have dispensed with
the necessity of calling one of the subscribing witnesses, if any
were alive, to prove that the formalities required by the power had
been complied with; but after thirty years, the case would rest
upon the presumption arising from the production of the instrument
itself. In the present case, the instrument shows a general
attestation of it by three witnesses, without any statement of the
particular facts they attested; but they must be understood to have
attested something, and to ascertain what that is, there is no
principle of law, nor any authority of which I am aware, that
prohibits a reference to the instrument itself, and if we look at
the instrument for information as to that which it is to be
presumed the witness did attest or witness, what do we find? Upon
the face of the instrument which the witnesses attest, the
testatrix says
I do publish and declare this to be my last will
and testament. In witness whereof I have set my hand and seal to
this my last will and testament, and then follows a signature
and seal purporting to be those of the testatrix. But supposing
such a special form of attestation as that contended for had been
adopted, it would not have varied the character of the evidence
derived from the terms of the instrument, and the general
attestation of the witnesses. It would but have raised a
presumption for the jury that they did witness that which is stated
in the attestation, subject to any doubt that might be raised as to
whether they really did witness that which is stated in the written
attestation or not."
In the same case, Williams, Justice, says
"Now the language of the power (as has been already mentioned)
is,
by her last will and testament, to be by her signed,
sealed, and published in the presence of, and attested by, three or
more credible witnesses. All this is found to have been done,
and we are now to see whether, by ordinary and fair construction,
neither forcing any interpretation in favor of it, nor wholly
excluding any reasonable inference for the mere purpose of
defeating what we know to have been rightly done, the requisites
appear to have been complied with. And here it seems very important
to attend particularly to the document itself. The will first
contains the whole testamentary part; every disposition of the
property is first fully made, and the will is therefore as to that,
its principal object, complete. The rest regards the manner of
Page 49 U. S. 35
the execution. It is thus:"
" I declare this only to be my last will and testament. In
witness whereof, I have to this my last will and testament,
contained in one sheet, set my hand and seal."
"The testatrix signed this part twice, once after the above
words, and again where her seal is affixed, and directly opposite
to the latter is the word
witness, and immediately under
it are the names of the witnesses, and the question is whether it
is to be understood that they attested, or, in other words, were
witnesses to anything, and if so, how much? And first it is to be
asked for what purpose was this testimonium clause (as it has been
called) introduced, or rather added? Certainly not to explain or to
qualify the will or any part of it. To its provisions it has no
allusion; but it respects the forms to be observed in the execution
of the will, and that only. Why are we to suppose that the
testatrix was ignorant of the terms, upon which alone her
dispositions could be available? This the language of the clause
shows she did understand. The clause therefore having this object,
we come to consider the purpose for which the witnesses are
introduced, and I confess I cannot conceive it possible to
understand the meaning of their presence, except to
witness
something. If it be said, and with truth, that the witnesses
cannot be presumed to be cognizant of the
contents of the
will, because that is contrary to experience, it is surely contrary
to the same experience to suppose that when the presence of the
witnesses is to be accounted for only by their being brought there
to witness something, certain ceremonies were performed, but that
they saw nothing of them, and that too when the very language of
the testimonium (I declare &c) imports that the testatrix was
making the declaration not to the winds, but to persons to whom she
might address herself -- who were there to see and hear. If, then,
the witnesses must be understood to have attested something, I can
see no possible reason for stopping short of the conclusion, that
they attested everything which by the clause purports to have been
done -- that is, signing, sealing, and publication."
Again by the same Justice, p. 433:
"Now in
Wright v. Wakeford, the power required the
consent of A and B, testified by writing or writings under their
hands and seals, attested by two or more credible witnesses. The
attestation clause is sealed and delivered by the within-named A
and B, in the presence of C. B. and G. B. Here the ceremony of
signing was omitted in an attestation which professed to give an
account of what had been done,
and there was not, as in the
present case, a testimonium clause."
In speaking of
Wright v. Wakeford, Gurney, Baron,
remarks:
Page 49 U. S. 36
"It is impossible to mention the names of Lord Eldon and the
three other judges of the common pleas, Heath, Lawrence, and
Chambre, otherwise than in terms of great respect. Nevertheless,
with all the respect which is due to their authority, I cannot but
think it most unfortunate that this decision was ever made. It has
led to great injustice. It has disappointed the just expectations
of sellers and devisors, and involved the courts in great
difficulties."
So, too, Lord Brougham, p. 466:
"I hardly know a case which has excited, at different times,
more remark than
Wright v. Wakeford. It has been again and
again questioned, it has again and again been criticized, by the
learned judges. It cannot, therefore, be said to have been at any
time a case that commanded anything like the entire concurrence of
Westminster Hall."
The reasoning of Tindal, C.J., in
Burdett v. Spilsbury,
applies with great force and clearness to the question before us.
"If," says this judge,
"the word 'witness' is taken abstractedly by itself as
constituting the whole of the attestation, I can see no objection
to holding that the three persons whose names are subjoined to it
must be taken to be witnesses to all that was actually done at the
time, which is found by the special verdict to be all that was
required to be done. Or, if the word 'witness' is to be construed
with reference to the statement immediately preceding it at the end
of the will, then the word witness necessarily implies that the
testatrix did in their presence declare the instrument to be her
will, and that she did in their presence put her hand and seal
thereto, that is, in the language of the settlement, that she
signed, sealed, and published it in the presence of these
three witnesses. To this construction an objection was taken at
your Lordship's bar, which has also been relied upon by some of the
learned judges who delivered their opinions before me;
viz., that it proceeds upon the supposition, that the
whole instrument may legally be read together to explain the
meaning of the word 'witness,' and that it supposes the witnesses
are conusant of the contents of the instrument, neither of which
can be supposed. But I cannot feel the force of this objection.
These has been, from the earliest time at which deeds were known, a
marked and acknowledged distinction between the operative part of
the deed itself, and the
testimonium clause (as it is
called) at the end of the deed. The essential part of the deed is
that part, and that only, which contains the grant. The clause at
the end is introduced, not as constituting any part of the deed,
but merely
to preserve the evidence of the due execution of
it. Admitting, therefore, the deed itself is matter which may
be held to be
Page 49 U. S. 37
confined to the knowledge of the parties, namely, the grantor
and grantee, the testimonium clause is expressly introduced into it
for the use of the public and the witness to the deed. It is well
known that a similar clause was constantly inserted in old deeds
and charters, at the close thereof, beginning with the words
'hiis testibus,' and thence generally called the
hiis
testibus clause, in which the names of the persons present,
who heard the deed read by the clerk, were written, not by
themselves, but by the clerk who prepared the deed. Spelman, in his
Glossary, p. 228, traces out the variations in the form of the
clause, at different periods of our history, and Madox in the
Defrutation prefixed to his
Formulare Anglicanum, goes
more fully into the matter, and in the work itself gives numerous
instances which it is impossible to read without being satisfied
that the sense requires that the witnesses, whose names are
inserted in the
hiis testibus clause, must of necessity
have known the words preceding it, or in fact they would have
witnessed nothing at all. Take for example among many, that
numbered 312:"
"
And that this my gift, grant, and confirmation may remain
firm forever, I have confirmed this present charter with the
impression of my seal, hiis testibus &c.,"
"Who can doubt for a moment that these witnesses either actually
read, or heard read over to them, the words of the deed immediately
preceding their names, and that the introduction of the preceding
clause had no other object or purpose? And this practice continued
down to the reign of Henry VIII, as appears by the authority of
Lord Cocke, who states the practice then began of separating the
attestation from the deed itself, and for the witnesses to
subscribe their own names to it, either at the bottom of, or
endorsed upon, it. But that the clause
in cujus rei
testimonium, so long as it was found at the close of the deed
itself, never formed part of the deed itself, is evident from
Shepard's Touchstone, where he says:"
" A deed is good, albeit these words in the close thereof,
in cujus rei testimonium sigillum meum apposui, be
omitted,"
"citing authorities which show that it is no more in fact than
what it imports to be, the very attestation of the deed which has
preceded it. There is therefore no reason why the word 'witness,'
written immediately after this testimonium clause, should not be
considered as incorporated with it, and as calling the attention of
the witnesses to all that had preceded in the testimonium
clause."
Again it is said by the same judge, p. 459
"So far from its being a rule of law that you may not, in the
attestation of a deed, look back to that which is found at the
close of the deed itself, that, on the contrary, in most of the
cases which have been relied on by
Page 49 U. S. 38
the defendant in error, express reference has been made to the
close of the deed itself."
A quotation from the opinion of Lord Campbell will close these
extracts from the opinions in
Burdett v. Spilsbury,
protracted, perhaps, beyond what even this interesting case will
warrant. His Lordship says, p. 467 -- "My Lords, in this case the
only question is whether the will was attested by three credible
witnesses." He proceeds, p. 468 --
"My Lords, independently of authority, I cannot doubt that for a
moment. The only objection that can be made is this that the will
upon the face of it does not contain any process verbal or history
of the transaction. But the power imposes no such condition -- it
does not say a will, signed, sealed, and published in the presence
of three witnesses and attested by them,
and a will containing
a history of the solemnity -- there are no such words in the
power."
Again, p. 469 -- "If it were necessary, my Lords, I think the
testimonium clause here might be resorted to, both upon principle
and authority." These reasonings of the English judges, going to
show that, upon principle, and independently of recent statutory
provisions, the memorandum of attestation, so far from being
conclusive upon the facts of
signing, sealing, and
publishing or delivering an instrument, may itself be controlled,
either by the examination of the witnesses themselves, or by
reference to the testimonium clause of such instruments, are fully
sustained, and even more than sustained, by the authority of the
supreme court of that state from whose jurisprudence and policy
this controversy might be supposed in some degree to take its
complexion. If, therefore, the most express adjudication of the
court of Appeals of Virginia can govern this case, it seems at once
disembarrassed of the objections alleged to the execution of the
power created by the marriage contract.
The recent decision in the case of
Pollock v. Glassel,
reported in 2 Gratt. 439, would seem to be decisive of the
questions now before us, that case having clearly ruled as the law
of Virginia with regard to a deed, that, although the distinctive
character of the instrument is to be determined by its intrinsic
evidence, the question is still open whether it be the deed of the
party, and that must be decided by evidence
aliunde. If by plea of
non est factum, or other
proper denial, the fact that the paper was sealed by the party be
put in issue, then it must be proved by competent and satisfactory
testimony. In Virginia, by long usage, which has received the
sanction of a statute, a scroll is used by way of a seal. The
decisions have required that the substitution of the scroll for
a
Page 49 U. S. 39
seal shall be recognized on the face of the deed, but in no case
has it been held that in the absence of such recognition, evidence
is inadmissible to prove that in fact the scroll was affixed to the
instrument with intent that it should stand in place of a seal. In
the case above referred to, it is said by the court:
"Here the question occurs in a court of probate, whose province
it is to examine the subscribing witnesses, and, if their testimony
is satisfactory, to establish and perpetuate the due execution of
the instrument. Upon what principle or authority are the
subscribing witnesses to be estopped, because of some informality
in the paper, from proving the fact, that it was sealed by the
testatrix, or, what is the same thing, that she adopted the scroll
affixed to it by way of seal? In the much stronger case of a deed,
there could be no such estoppel in a court of probate."
In the same case, the court said, through Baldwin, Justice
--
"It will be seen that the statute requires the will to be
attested by the witnesses, but does not prescribe what,
nor that any, facts shall be stated in their attestation. I think
it plain that the legislature meant nothing more than that the
instrument itself should be attested in order to identify the
witnesses and designate who are to prove its execution. The object
was not to obtain from the witnesses a certificate of the essential
facts of the transaction, but to provide the means of proving them
by persons entitled to confidence and selected for the purpose. The
subscription of their names denotes that they were present at and
prepared to prove the due execution of the instrument so attested,
and nothing more. The attestation is the act of the witnesses, and
it was not intended to confide to them the duty of stamping their
testimony upon the paper, which would avail nothing as evidence,
however perfect, and which ought to create no estoppel, however
imperfect. This view of the statutory provision is in effect
sustained by the English decisions."
Again, p. 465, it is said by the same judge:
"I think it clear that the subscription of the witnesses is
substantially the attestation contemplated by the statute, and it
is sufficient if the purpose be indicated by the briefest
memorandum, or merely by a fair presumption arising from the local
position of their signatures upon the paper, and whether a
memorandum of attestation be general or special, it may be denied
or contradicted by the subscribing witnesses, in the whole or in
part, and of course is open to explanation if in any way
ambiguous."
The court then proceed to review the case of
Wright v.
Wakeford and the cases of
Doe v. Peach, Wright v.
Barlow, and
Moodie v. Reid, rejecting them as
authority in the State of Virginia as to the form and influence
Page 49 U. S. 40
of the memorandum of attestation, and concurring with the
doctrines declared by the majority of the judges in
Burdett v.
Spilsbury.
An objection has been made to the sale under the deed of trust
based upon the fact that the portion of the property actually sold
did not equal in value the whole amount of the debt due to the
bank, which it is insisted should have been the case according to
the proviso in that deed. We do not see the force of this
objection, inasmuch as by the express terms of the deed authority
was given the trustee or the bank to sell the property in separate
parcels, as either might deem it necessary or advisable, and it
would have been impracticable before an experiment to ascertain
a priori how much of the property would be requisite for
the satisfaction of the debt, and thus a literal adherence to the
proviso would lead either to the preventing a sale altogether, or
to the sacrifice of the whole estate, whether there should have
been a necessity for it or not. Moreover, the sale by parcel in
this case was selected upon a calculation of advantage to the
feme, and with her express approbation, with a view of
saving to her if practicable, a portion of the property.
Upon full consideration of the facts and the law of this case,
the Court is of the opinion, that the marriage contract gave power
to the
feme covert to appoint the entire estate and
property embraced within it; that the provisions and conditions of
that contract have been complied with in the execution of the power
thereby created and reserved; that therefore the decree of the
circuit court dismissing the bill of the appellant, the complainant
below, ought to be affirmed, and it is hereby accordingly
Affirmed.
Order
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 Alexandria, and was
argued by counsel. On consideration whereof it is now here ordered,
adjudged, and decreed by this Court that the decree of the said
circuit court in this cause be and the same is hereby affirmed with
costs.
