Opinion
(June Term, 1803.)
1. It seems that a trust estate in personalty is as much subject to distribution on the death of the owner intestate as a legal estate in personalty.
2. Where a settlement was made, in contemplation of marriage, of all the real and personal estate of the intended wife, and certain real estate of the intended husband, whereby a portion of the wife's personal estate was secured to the husband, and the balance thereof was secured to the wife, together with the life estate in his real property and an annuity of £ 120 out of his property not conveyed in the settlement, in the event of her surviving him, the Court inclined to hold that upon the death of the husband intestate, the wife could not claim a distributive share in the personal estate secured by the deed to him.
PLAINTIFF claimed, under the will of Jane Corbin, all that she was entitled to under the marriage settlement between her and Francis Corbin, prior to the marriage, particularly they claimed all the increase of the negroes mentioned in the deed whereby the marriage settlement was made, and a widow's share, under the act of distributions, of the one-half of the original stock of negroes secured by that deed to Corbin, who died before her, intestate. They made other claims besides, but these were the claims upon which lay the stress of the argument.
The deed recited that on that day, 28 October, 1761, the said Jane Innis and Francis Corbin, as well for and in consideration of a marriage, by God's permission, intended shortly to be had and solemnized between the said Francis Corbin and Jane Innis, and of the sum of 20s sterling money of Great Britain, by Samuel Swann and John Swann to the said Jane Innis in hand paid at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged; and for and towards settling and assuring the several plantations, tracts, or parcels of lands, tenements and hereditaments, and negro slaves (1) and heir increase, plate, household goods, and stock of horses, cattle, hogs, and sheep; the estate of her, (2) the said Jane Innis, hereinafter mentioned to be granted in trust, to and for the several uses, intents and purposes, and subject to the powers, provisos, limitations, and agreements hereinafter limited, declared and expressed; and for divers other good causes and considerations hereunto especially moving, she, the said Jane Innis, by and with the consent, direction, and appointment of the said Francis Corbin, testified by his being party to and signing and sealing these presents, hath granted, bargained, sold, aliened, released, and (263) confirmed, and by these presents doth fully, clearly, and absolutely grant, sell, alien, release, and confirm unto the said Samuel Swann and John Swann, in their actual possession, now being by virtue of a bargain and sale to them thereof made for one year, in consideration of 10s sterling money of Great Britain, by indenture bearing date the day next before the day of the date of these presents, and by force and virtue of the statute for transferring uses into possession, and to their heirs and assigns, all those the three plantations, tracts, or parcels of land of her, the said Jane, lying and being on the easternmost branch of Long Creek, in New Hanover County, containing, in the whole, 1,260 acres; also all that other plantation, tract, or parcel of land of her, the said Jane, lying and being on the northeast side of the northwest branch of Cape Fear River, joining the upper side of the late Henry Simons' land in Bladen County, containing 320 acres; also all that other plantation, tract, or parcel of land of her, the said Jane, containing 180 acres, lying and being in Bladen County, on the west side of the northwest branch of Cape Fear River, joining McNight's land, together with all the houses, outhouses, edifices, buildings, orchards, gardens, lanes, meadows, trees, woods, ways, paths, waters, watercourses, casements, profits, commodities, advantages, emoluments, and hereditaments whatsoever, to the said several plantations, tracts, or parcels of land or either of them, belonging or anywise appertaining; and the reversion or reversions, remainder or remainders, rents, issues, and profits thereof, and of every part or parcel thereof; and all the estate, right, title, interest, use, trust, possession, property, claim, and demand of her, the said Jane Innis, of, into, and out of the said several plantations, tracts, or parcels of lands, tenements, and hereditaments, and premises, and every of them; to have and to hold the said several plantations, tracts, or parcels of lands, tenements, and hereditaments, and all and singular other the premises, unto the said Samuel Swann and John Swann, their heirs and assigns, in trust, nevertheless, to and for the several uses, intents, and purposes, and subject to and under the several powers, provisos, limitations, and agreements hereinafter and by these presents limited, declared, and expressed. And this indenture further witnesseth, that for the consideration aforesaid, and in consideration of the sum of 10s, like sterling money, to the said Jane Innis in hand paid by the said Samuel Swann and John Swann at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, she, the said Jane Innis, by and with the consent, direction, and appointment of the said Francis Corbin, also testified by his being party to and signing and sealing these presents, hath granted, bargained, sold, aliened, and confirmed, and by these presents doth grant, bargain, sell, alien, and confirm unto the said Samuel Swann and John Swann, their heirs and assigns, (264) all that tract or parcel of land situate, lying and being in New Hanover County, containing 320 acres, being the plantation whereon the said Jane Innis now dwells, and called or known by the name of Point Pleasant; and also all that other tract or parcel of marsh land, containing 100 acres, lying and being in the county aforesaid, across the river, opposite to the plantation aforesaid; and also all the houses, outhouses, tenements, gardens, orchards, trees, woods, underwoods, profits, commodities, advantages, hereditaments, ways, waters, and appurtenances whatsoever, to the said plantation, tracts, or parcels of land above mentioned belonging or in anywise appertaining; and also the reversion and reversions, remainder and remainders, rents and services of the said premises, and of every part thereof, and all the estate, right, title, interest, claim, and demand whatsoever, of her, the said Jane Innis, of, in and to the aforesaid two several tracts or parcels of land and premises, and every part thereof: to have and to hold the said two tracts or parcels of land and tenements, and all and singular the said premises with the appurtenances above mentioned, and every part or parcels thereof, unto the said Samuel Swann and John Swann, their heirs and assigns, for and during the natural life of the said Jane Innis, in trust, nevertheless, to and for the several uses, intents and purposes, and subject to and under the several powers, provisos and limitations and agreements hereinafter by these presents limited, declared, and expressed. And this indenture further witnesseth, that for the consideration aforesaid, and in consideration of the sum of 10s like sterling money, to the said Jane Innis in hand paid by the said Samuel Swann and John Swann, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, she, the said Jane Innis, by and with the consent, direction, and appointment of the said Francis Corbin also testified to his being party to and signing and sealing these presents, hath granted, bargained, sold, assigned, set over, transferred, and by these presents doth fully, freely, and absolutely grant, bargain, sell, assign, set over, and transfer unto the said Samuel Swann and John Swann, their executors, administrators, and assigns, all and singular her negro slaves (3) following, by name, Peter, Johnny, Peter, Jr., Rutherford, Mingo, March, Ben, Sinclair, Jr., Exeter, Bob, George, Quomino, Cato, Monrow, Murray, Jemmy, Cyrus, Canisby, Sinclair, Cuffe, Jamaica, Tom, David, Mundingo, Charles, Betty, Murry, Caesar, Southerland, Ross, Solomon, Anthony, Carthness, Cain, Cudjo, Douglass, London, Sentry, Jimboy, George, Jr., Shields, Sandy, Caesar, Nancy, Phoeba, Lucretia, Jr., Uphamia, Victoria, Jenny, Barbary, Violet, Lucretia, Delia, Coelia, Carolina Jenny, Dinah, Mary, (265) Jenny Murray, Nanny, Guy, Jenny Pollard, Bell, Sarah, Minah, Patient, Peggy, Polly, Nancy, Delia, Jr., Belindah, Dinah, Jr., Statira, Suckey, Dinah, Betty, Maze, Nanny, Rose, together with their (4) future increase; also all the plate, household goods, stocks of horses, black cattle, sheep and hogs, and all other the personal estate of her, the said Jane Innis, wheresoever to be found in the province of North Carolina or elsewhere; to have and to hold, all and singular the said negro slaves, together with their (9) future increase, plate, household goods, stocks of horses, black cattle, sheep, and hogs, and every of them, and all the other personal estate of her, the said Jane Innis, by these presents granted, bargained, sold, assigned, set over, and transferred, mentioned or intended to be granted, bargained, sold, assigned, set over, and transferred unto the said Samuel Swann and John Swann, their executors, administrators, and assigns, in trust, nevertheless, to and for the several uses, intents, and purposes, and subject to and under the several powers, provisos, limitations, conditions, and agreements hereinafter by these presents limited, declared and expressed. And this indenture further witnesseth, that in consideration of the said intended marriage, and of the great love and affection the said Francis Corbin hath and beareth to the said Jane Innis, and of the sum of 20s sterling money of Great Britain to the said Francis Corbin in hand by the said Samuel Swann and John Swann at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, he, the said Francis, hath granted, bargained, sold, aliened, released and confirmed, and by these presents doth fully, clearly, and absolutely grant, bargain, sell, alien, release, and confirm unto the said Samuel Swann and John Swann, in their actual possession, now being by virtue of a bargain and sale to them thereof made for one year, in consideration of 10s sterling money of Great Britain, by indenture bearing date the day next before the day of the date of these presents, and by force and virtue of the statute for transferring uses into possession, and to their heirs and assigns, all that (6) lot or half-acre of land, and wharf of him, the said Francis, lying and being in the town of Edenton, in Chowan County, purchased by the said Francis of Thomas Barker, Esq., also all that island and the marsh thereunto belonging, purchased by the said Francis of the executors of James Craven, Esq., deceased, lying and being near Edenton, in Chowan County aforesaid, called and known by the name of Strawberry Island, together with the houses, outhouses, improvements, and all other the appurtenances to the said lot and wharf and island belonging or anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof, and all the estate, right, title, interest, use, trust, possession, claim, and demand of him, the said Francis Corbin, (266) of, in and to or out of the said lot or half-acre of land, wharf, houses, island, and marsh, tenements, hereditaments, and premises, and every of them; to have and to hold the said lot or half-acre of land, wharf, island and marsh, houses, tenements, and all and singular other the premises last mentioned, and parcel thereof, with the appurtenances, unto the said Samuel Swann and John Swann, their heirs and assigns, in trust, nevertheless, to and for the several uses, intents, and purposes, and subject to, and under the several powers, provisos, limitations, and agreements hereinafter by these presents limited, declared and expressed. And it is hereby declared and agreed by and between all the said parties to these presents, that the said Samuel Swann and John Swann, their heirs, executors, and administrators, shall hold and be seized of all and singular the said lands, islands, lot, wharf, messuages, houses, tenements, and hereditaments, and have, hold, and possess all the negro slaves and their future (7) increase plate, household goods, stocks of horses, black cattle, sheep, and hogs, and all and singular other the premises to them hereinbefore and hereby granted and sold as aforesaid, to the several uses following; that is to say, as to all and singular the lands, tenements, and hereditaments, in the several counties of New Hanover and Bladen, and the negro (8) slaves, plate, household goods, stocks of horses, black cattle, sheep, and hogs, and every of them, the real and personal estate of the said Jane Innis, to the use and behoof of the said Jane Innis and her heirs and assigns, until the said intended marriage shall be had and solemnized; and from and after the said intended marriage shall be had and solemnized, to the only use of the said Samuel Swann and John Swann, their heirs, executors, administrators, and assigns, in trust, nevertheless, that the said Samuel Swann and John Swann, and the survivor of them, and their heirs, executors, and administrators and assigns of such survivor, shall receive and pay the clear rents, issues and profits of the (9) aforesaid lands, tenements, and hereditaments in the counties of New Hanover and Bladen, all reasonable deductions being first made from time to time, yearly and every year, or oftener, if conveniently may be; and shall also permit and suffer the said Jane Innis (10) to receive all the profits arising by the negro slaves aforesaid, either from their labor, increase, or hire; and also all that shall or may in any manner arise from all and every other part of the personal estate of the said Jane Innis aforesaid for and during the term of her natural (11) life for her separate use and benefit, exclusive of the said Francis Corbin, her intended husband, and so that the same, or any part thereof, shall not be subject to the control, disposition, debts, forfeitures, encumbrances, or contracts of the (267) said Francis Corbin, her intended husband; and that all such sum or sums of money as shall be paid unto her during her coverture shall be paid into her own hands or to such person or persons as she, the said Jane Innis, shall by writing signed with her name, of her own handwriting, direct or appoint; and that her own receipt shall be a sufficient discharge for the same unto Samuel Swann and John Swann, or any other person whatsoever, notwithstanding her coverture. And from and after the decease of the said Jane Innis, then they, the said Samuel Swann and John Swann and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor, shall stand and be seized of those, the said three plantations, tracts, or parcels of land lying and being on the easternmost branch of Long Creek, in New Hanover County, containing, in the whole, 1,260 acres; and also of those other two plantations, tracts, or parcels of land in Bladen County, the one joining the upper side of Henry Simons' lands and the other joining McNight's lands; and shall have, hold, and possess the negro (12) slaves and other the personal estate aforesaid, of her, the said Jane Innis, in trust for the uses, intents, and purposes following; that is to say, so much of the said (13) lands, negro slaves and other the personal estate of the said Jane Innis aforesaid, not exceeding the one-half thereof, or the sum of £ 2,000 proclamation money, to be raised and paid by the said trustees, and the survivor of them, and the heirs, executors, administrators, and assigns of such survivors, out of the whole real and personal estate aforesaid of the said Jane Innis (whichever the said Jane shall be minded to give and dispose of), to the use and behoof of such person or persons, his or their heirs and assigns forever, to whom the said Jane, whether covert or sole, and if covert, notwithstanding her coverture, shall, by any deed or writing, last will and testament, or other writing purporting to be her last will and testament, attested by two or more creditable witnesses, give, devise, (14) direct, or appoint the same, and for the want of such direction and appointment, to the use of the said Francis Corbin, his heirs or assigns forever, and the other half or remaining part of the said lands, negroes, and of other the personal estate of the said Jane Innis, to the use and behoof of the said Francis Corbin, his heirs and assigns forever. And as for touching and concerning the said lot or half-acre of land and wharf, with the tenements and appurtenances thereto belonging and appertaining, lying and being in the town of Edenton, in Chowan County, and the said island called Strawberry Island, and marsh thereto belonging, lying and being near Edenton, in Chowan County aforesaid, the estate of the said Francis Corbin to the use and behoof of the said Francis Corbin and his heirs, until the solemnization of the said intended marriage, and from and after the said intended marriage shall be had and solemnized, to the use and behoof of the said Francis (268) Corbin and his assigns, for and during the term of his natural life, without impeachment of or for any manner of waste, and from and after the determination of that estate, to the use and behoof of the said Samuel Swann and John Swann, and their heirs, during the natural life of the said Francis Corbin, in trust to preserve the contingent uses hereinafter limited from being barred and destroyed, and for that purpose to make entries and bring actions as the case shall require, yet as to permit and suffer the said Francis Corbin to receive the rents and profits of the said last mentioned premises for and during his natural life, and from and after his decease, (15) then to the use and behoof of the said Jane Innis, his intended wife, and her assigns, for and during the term of her natural life, without impeachment of or for any manner of waste, and from and after the decease of the said Francis Corbin and Jane, his intended wife, and the longest liver of them, to the use and behoof of the said Francis Corbin, his heirs and assigns forever: Provided, always, and it is declared and agreed by and between the said parties to these presents that it shall be lawful to and for the said Francis Corbin, during the term of his natural life, and from and after his decease, to and for the said Jane, during the term of her natural life, as when the said Francis Corbin and Jane shall be in the actual possession of the said last mentioned premises limited to the said Francis Corbin and the said Jane Innis during their several and respective lives, by any deed or deeds attested by two or more credible witnesses, to demise, lease or grant the said lot or half-acre of land and wharf, with the tenements, hereditaments, and appurtenances thereto belonging, and the aforesaid island and marsh, with the appurtenances thereto belonging, to any person or persons for and during the term of the respective life of the said Francis or Jane, and no longer, for and upon such rents as to the said Francis or Jane shall seem meet and convenient, so as every such lease contain a condition for reentry for nonpayment of the rent thereby to be reserved, and as every such lessee do execute a counterpart of such lease; anything herein to the contrary notwithstanding: Provided, also, and it is hereby further declared and agreed by and between the said parties to these presents, that it shall and may be lawful to and for the said Jane, notwithstanding her coverture, and as if she were sole and unmarried, by any deeds, writing, or writings, signed by her, with her name, of her own handwriting, sealed and delivered in the presence of two or more credible witnesses, with the consent of the said Samuel Swann and John Swann, and the survivor of them, and the heirs of such survivor, testified by their being parties to such deed or deeds, to make any lease or leases, demises or (269) grants of all or any of the lands limited to the said Samuel Swann and John Swann and their heirs, in trust for the sole and separate use and behoof of the said Jane Innis as aforesaid, to any person or persons, for the term of the natural life of the said Jane, and no longer, for and upon such rents as the said Jane can agree for or shall think meet and convenient; and also for the said Jane from time to time, and all times hereafter, during her natural life, and when she shall be so minded, notwithstanding her (16) coverture, and as if she were sole and unmarried, to have and take upon her the whole and sole care, ordering, direction, and management of the negro slaves, and all other the personal estate hereinbefore limited to the said Samuel Swann and John Swann, their executors, administrators and assigns, in trust for the sole and separate use of the said Jane as aforesaid; and to receive, have, take, and dispose of the profits arising from the same and every part thereof, either by the labor, hire, and increase of the negro slaves, increase of the stocks of horses, black cattle, sheep, and hogs, or otherwise, at her will and pleasure, and in such manner (17) as she shall please or think fit, without the control, intermeddling, interruption, let, or hindrance of the said Francis Corbin, her intended husband, anything hereinbefore contained to the contrary notwithstanding: Provided, also, and it is hereby further declared and agreed by all the said parties to these presents, that it shall and may be lawful to and for the said Francis Corbin and the said Jane, his intended wife, at any time during her natural life, notwithstanding her coverture, with the consent of the said Samuel Swann and John Swann, or the survivor of them, first had in writing, attested by three or more credible witnesses, and if the said Samuel Swann and John Swann shall both of them be dead, then for the said Francis Corbin and Jane Innis, without such consent, by any writing or writings by them to be signed and sealed in the presence of three or more credible witnesses, and proved, the said Jane being first privately examined touching her consent and agreement thereto, in due form of law (and not otherwise), to revoke all or any of the use and uses, trusts, estates, and limitations hereinbefore limited and declared of or concerning the said lands, negro (18) slaves and their increase, plate, household goods, stocks of horses, black cattle, sheep, and hogs, hereinbefore mentioned, and by the same writing or writings, or by any other deed or deeds signed, sealed, executed, attested, and approved as aforesaid (the said Jane being first privately examined as aforesaid), absolutely to sell (19) and dispose of the said lands, negro slaves, plate, household goods, stocks of horses, black cattle, sheep, and hogs, or any of them, to such person or persons, to such uses, intents, and purposes as they, the said Francis Corbin and the said Jane, his intended wife, shall limit, declare, or appoint; anything hereinbefore contained to the contrary notwithstanding. (270) And the said Francis Corbin and Jane Innis do hereby severally covenant, promise and agree to and with the said Samuel Swann and John Swann, their heirs, executors, and administrators, that the said lands and every of them, with their and every of their appurtenances, and negro (20) slaves, plate, household goods, stock of horses, black cattle, sheep, and hogs and premises, and all and every of them, shall and may be at all times from henceforth peaceably and quietly held and enjoyed by the said Samuel Swann and John Swann, and their heirs, executors, and administrators, according to the several trusts, and subject to the several provisos hereinbefore mentioned, limited, expressed or directed, touching and concerning the same; and further, that they, the said Francis Corbin and Jane Innis, shall and will at all times hereafter, upon the reasonable request of the said Samuel Swann and John Swann, make, do or execute, or cause or procure to be made, done and executed, all and every such further and other lawful and reasonable grants, acts and assurances in law whatsoever, for the further, better, and more perfect granting and assuring of all and singular the said lands, with the appurtenances, and the (21) negro slaves, plate, household goods, stocks of horses, black cattle, sheep, and hogs and premises, and every of them above mentioned, to and for the several uses, intents, and purposes, and under the trusts and subject to the provisos hereinbefore contained, according to the true intent and meaning of these presents, as by the said Samuel Swann and John Swann, or the survivor of them, the heirs, executors, and administrators of such survivor, or their or any of their counsel learned in the law, shall be reasonably devised or advised and required. And whereas it is agreed by and between the said Francis Corbin and Jane Innis that in case the said intended marriage shall take effect, and that the said Jane shall survive the said Francis Corbin, that then and in that case the heirs, executors, administrators and assigns of the said Francis Corbin shall out of the other estate whatsoever of the said Francis (not in these presents before mentioned), or out of profits arising therefrom, pay to the said Jane, yearly (22) and every year, the yearly sum of £ 120 proclamation money, being the yearly interest, at 6 per cent, of the sum of £ 2,000 like money. Now this indenture further witnesseth, that the said Francis Corbin, for and in consideration of the said intended marriage, for himself, his heirs, executors and administrators, doth covenant, (23) promise, and grant to and with the said Samuel Swann and John Swann, their heirs, executors, and administrators, that in case the said intended marriage shall take effect, and the said Jane shall survive him, the said Francis Corbin, that then and (271) in that case the heirs, executors, and administrators and assigns of the said Francis Corbin shall out of the (24) other estate whatsoever of him, the said Francis Corbin, and of which he shall or may die possessed, or at any time of his decease be entitled to (not in these presents before mentioned), or out of the profits arising therefrom, pay to the said Jane, yearly and every year, the yearly sum of £ 120 proclamation money: Provided always and lastly, and it is hereby expressed, declared and agreed to be the true intent and meaning of these presents and of the said parties, that the said Samuel Swann and John Swann, their heirs, executors, and administrators and assigns shall not, nor shall any of them by virtue of these presents, nor shall they or either of them be charged or chargeable with the receipts, payments, or acts of the other of them, but each of them for and with his own receipts, payments, and acts only, and not otherwise; nor shall they or either of them be charged or chargeable with any loss or losses that may happen by reason of insolvency of or by the said Francis Corbin or Jane, his intended wife, or either of them, or of or by any person or persons whatsoever; and that they, the said Samuel Swann and John Swann, their heirs, executors, and administrators, shall be paid from time to time out of the trust estates aforesaid all such costs, charges, damages, and expenses which they or either of them, their or either of their executors or administrators, shall pay, bear or be put unto by virtue or reason of the trusts hereby in them reposed, or the execution thereof or otherwise relating thereto; anything hereinbefore contained to the contrary thereof in any wise notwithstanding.
In witness whereof the said parties within mentioned have to these presents interchangeably set their hands and seals, the day and year first above written.
Defendant's counsel insisted, upon this deed, first, that on the death of Mr. Corbin, intestate, his window was not entitled to the increase of the negro slaves born after the date of the deed; for by parts 1, 2, 3 and 4, the negroes and their increase are vested in the trustees; part 5, to be held with their increase, and part 7, also to these uses, viz., as to the negro slaves, to permit her, part 10, to receive all the profits arising by the negro slaves aforesaid; which, by reference, includes the negro slaves and their increase, either from their labor, increase or hire; and their profits by increase means profits derived from or by means of the labor or hire of the increase. It would be inconsistent to vest the increase in the trustees as a subject of trust, and direct them to hold the increase in trust, and at the same time to make them a part of her separate estate, and to give her power, by part 16, to take and dispose of them at her will and pleasure. Moreover, she and her husband, by part 19, may sell and dispose, under restrictions there (272) mentioned, of the said negro slaves; which, by reference, are the negroes vested in the trustees — that is to say, both negroes and their increase. And how could it be necessary to give them jointly this power if, as to the increase, they are intended by the deed to be absolutely heirs? And here the term, "said negroes," relates to the last antecedent, in part 18, where the word "increase," and their power to revoke the uses concerning the said negroes and their increase, is expressly mentioned, and immediately afterwards it is added, "and they may sell the said negroes."
Secondly: They argued that this marriage settlement was to be considered as a bar to her claim of a distributive share of the estate of F. Corbin, which belonged to him by this deed; and they cited 1 Fonb., 92; 2 Vern., 58; 4 Viner, 40; 2 Vern., 709; 1 P. W., 324; 3 Atk., 419; 1 Vez., 1; 1 P. W., 324; 2 Bro. Ch., 95, 394, and many other cases.
Thirdly: They argued that she had under this deed a provision made for her out of his estate. In part 15, a lot, wharf, and island are to be to her use after his death, for the term of her life; and that this made him a purchaser in equity of all the estate secured to him by the deed of a settlement; and he has also provided her with £ 120 per annum, to be paid to her for life, in case of her surviving him, in part 22; and they doubted whether his estate, being a trust estate, was subject to the act of distributions.
E contra: She is entitled under this deed to the increase, as a part of her separate estate; for the negroes and increase are mentioned in parts 1, 3, and 4, where the purposes of the deed and the passing of the property to the trustees is provided for; and in part 7, where the trustees are to hold the property; yet in part 10 the word "increase" is dropped as an antecedent, and made use of as a relative, she is to receive the profits of the negro slaves, by labor, hire or increase. And why is the omission so carefully observed? Is it not because, otherwise, profits by increase would have meant profits by increase of the negroes and increase? Whereas the writer meant the increase themselves to go to her. In part 12, where the trusts of the property, and particularly of the negroes vested in the trustees, are stated, the term "increase" is also carefully omitted. They are to hold the negroes in trust that so much of the said negroes, etc. Why is the term "increase" dropped here? The answer is, Because the increase were appropriated to her by part 10. In part 16 she is to take the direction and management of the negro slaves, and to take the profits arising from the same by the labor, hire, and increase of the negro slaves. Why is the term "increase" here omitted as the antecedent? And why is she (273) directed to take and dispose of the profits by increase in such manner as she shall please and think fit? Here the expression is, "increase of the negro slaves." If the term "profits by increase" could be construed in page 10 to be some other increase than that of slaves, it is here explained unequivocally what is meant. It cannot be understood otherwise than that she is to dispose at her pleasure of the negro children born after the deed.
In part 12 the trustees, after her death, are to possess and hold the negro slaves for the uses, etc. Why is the word "increase" not here used? It is because by parts 10 and 16 the increase is given to the feme.
In part 13, where power is given to her to dispose by will, the term "increase" is omitted; and it was properly omitted, because, as to the increase, she needed no such power, that being already vested in her by part 10.
The doubt which the ingenuity of counsel have thrown upon this question is produced by referring the words profits by increase to the words negroes and increase, mentioned in 1, 3, and 4. It should be remembered that the last antecedent is in part 10, and immediately precedes the relative words, profits by increase. There is no rule better established than this, that verba relata ad proximum antecedents referunt. If this rule be applied to the deed in question, which seems to have been drawn with uncommon accuracy, it will dispel all the doubts which have been raised by referring the term to a remote antecedent; for then, as clearly as can be spoken in our language, she will be entitled to profits by increase of the negroes, and no one inconsistency will be found in the whole deed, and every part of the deed where the word "increase" is used or omitted will be completely explained and accounted for.
As to the question whether she is barred of her distributive share of the property he acquired under this deed, it is to be remarked that contracts in prospect of marriage are of various kinds: some settle specific property; others covenant to pay money, or settle property or money. With respect to those which settle property specifically, some of them are in bar of the future claims of the wife, and some of them operate as a purchase of her fortune and future acquisitions. Such as operate in bar of her future claims have that quality, not merely because they are settlements of property in prospect of marriage; nor, indeed, do they derive any part of this quality from the consideration that they are settlements of property between the husband and wife, but solely and only from the consideration that the parties have agreed they shall be in bar of her future claims. And such agreement must be evidenced either by the express terms of the deed that they shall be in bar, and of what future claims particularly; for nothing will be barred unless included within the extent of the terms made use of. For instance, dower will not be barred by a marriage (274) settlement, when it accrues by the death of the husband, unless it be mentioned in the deed that the settlement is to be in bar of her dower, or unless that meaning and intent is to be fairly inferred from the terms made use of in the deed. In C. D., 2 Vol. Chancery Dower, 3 E., it is laid down from Equity Cases, 152, that a woman shall not be restrained from having her dower where the husband makes a settlement upon her in consideration of the marriage portion, if it is not expressed to be in bar of dower, and it does not appear to be expressly intended. If a settlement by him of his estate, in consideration of her portion, will not bar her, how much less will she be barred when he settles nothing of his own upon her, and gets by the settlement half of her estate? 3 Atkins, 8; 2 Vernon., 365; E. Ca., 218, 219, support the principle that she is not barred of her dower unless by an agreement clearly expressed or plainly to be implied from the deed. The same principle applies with equal force, and is equally well supported in regard to her claims upon the personal estate — her distributive share, for instance; it is not barred by a settlement unless agreed to be so, and that agreement sufficiently expressed. In 3 Bro. Ch. C., 362, a leasehold estate was settled previous to marriage upon the wife, in recompense and bar of dower; and for a provision for the wife, the husband had no real estate; and the question was, whether this was a bar to the wife's claim of thirds; and L. Chancellor held it was not. Though mentioned to be for a provision for the wife, yet not being expressed to be in bar of her thirds, the necessary agreement to render it a bar did not appear. 2 Vernon, 725; 1 Atk., 439; 1 Vernon, 15, are to the same effect. Another circumstance very material in the present case is that there is no case to show that a settlement of the wife's estate on her, or of part of her estate on her, has ever been, by construction, made to be a bar where there are not express words. 3 P. W., 199; P. Ch., 63; 2 Vern., 58; 1 E. C. A., 70. There is no agreement, expressed nor to be implied from what is expressed in the deed now before us, for the purpose of barring any claim of the wife, whatsoever. There is no such thing hinted at; and if it be a true rule that she cannot be barred of her thirds unless there be an agreement for the purpose, then we may conclude that she is not barred of her thirds, a moiety, on his dying intestate.
Then the next question will be, Can he be considered as a purchaser of her fortune and future acquisitions under this deed? A man by making settlement on his wife may place himself in a situation to be considered in equity as a purchaser of her property; but then, in the first (275) place, he must make the purchase by a settlement on her of his property, not her own. Secondly, it must be agreed that he shall be considered as a purchaser. Thirdly, there must be such words used as are sufficient to show it. For support of the first point, he cited 3 P. W., 199. In support of the second, he cited 1 Fonb., 692; Ambler, 692; 4 Viner, 40; P. Ch., 209; 1 Fonb., 310; 2 Vern., 68; 2 C. D., 390: "A husband settles a jointure suitable to the portion of his wife, which consists of choses in action, and, the inheritance settled, the husband dies, his executor shall not have those debts or the inheritance, without a special agreement for that purpose, though the husband left not otherwise assets for his debts." And in support of the third point, namely, that such words must be used in the deed as imply the property settled to be for her fortune, he cited 2 Vez., 677; 1 E. C. A., 170, 70, as to say, that he makes it in consideration of her fortune, or in lieu thereof. 1 Vernon, 7; 2 Vernon, 68, 501; 1 P. W., 378; 2 P. W., 608; 2 Atk., 448; 3 Atk., 20. There is no such agreement here, either expressed or implied; and, therefore, he cannot be considered as a purchaser. The settlement is not expressed to be made of his estate, in consideration of her fortune, but for and in consideration of a marriage, etc., and for settling land, negroes, etc., the estate of the said Jane Innis.
With respect to covenants to pay money: If they be covenants to pay after the death of the husband, and as he leaves her as much by will, or to devolve upon her, as her share, it is a performance or satisfaction of the covenant. 4 Atk., 419; 2 Vern., 709; 1 Vezey, 1; 1 Vez., 520. But if the covenant be performable in his lifetime, this a debt, and debts are to be paid first, and the surplus divided; and then she is to be paid, and to divide the surplus, also. 1 P. W., 324; 1 Bro. C. Ch., 63; 2 Bro. C. Ch., 394; 2 Bro. C. Ch., 95. Here is no covenant for payment of money in the lifetime of the husband; and the only consideration remaining is whether there be anything given to her in satisfaction of her claims. He has covenanted, indeed, after his death, that his executors shall pay her £ 120 per annum for her life. It will not be pretended that this covenant was to be as a purchase of or in bar of her future claims. It was covenanted for the reasons and considerations expressed as the causes of that deed; and it has never been performed, for it is admitted by the pleadings to be in arrear, and it is hardly denied that he had nothing wherewith to pay it; and for one thing to be in satisfaction of another, it must be of equal value. 2 V., 37, 409; 2 Vern., 478; 2 Bro. C. Ch., 100; 2 Fonb., 326; 4 V., Jr., 391. It must be of the same nature. 1 V., 521; 1 P. C., 394; 2 Fonb., 327. And it must be equally certain. 1 V., 521; 2 V., 636; P. Ch., 394; 1 P. W., 408; 2 P. W., 553, 616; 1 V., 126; 2 Atk., 300; 3 P. W., 227; 1 P. W., 410 (14th ed.). The lot, wharf and island do not answer this description; her interest therein is contingent, depending upon his death before hers. (276) It is also for her life only, whereas her moiety is forever. They are of different natures, for one is realty and the other personalty; and they are of very different values. How can property to the value of £ 100 ever be presumed to be in satisfaction of claims to property for £ 10,000? She is entitled to the annuity, because he has neither given nor left her any property equivalent thereto; and she is entitled to her distributive share, because there is nothing even, setting aside the necessity for an agreement, that the settlement should be in bar which he has given of his in exchange for her claims. She never had any interest in the lot, wharf and island, because she survived the husband.
As to the objection that the husband's trust estate is not subject to the act of distributions, a trust estate in personalties is as much subject to distribution on the death of the intestate owner as a legal estate in personalties is. 2 Fonb., 15; 2 Atk., 296, 299; 1 Vernon, 204; 1 P. W., 109; 1 Vez., 237.
The cases cited on the other side belong to distinct classes. Some of them are cases where the husband has been considered as a purchaser by making an equivalent settlement. Such are 1 Fonb., 92; 2 Vernon, 58; 4 Viner, 40; Pre. Ch., 209, 63, 312; 3 P. W., 199. These respect his claim of that which was hers, not her claim, as in the present case, of that which was his, and are therefore inapplicable. Some are cases of satisfaction, where the question is whether the wife's share shall be a discharge of that which was covenanted? Such are 2 Vern., 709; 1 P. W., 324; 3 Atk., 419; 1 Vezey, 1; 2 Bro. C. Ch., 95, 394. Here it is contended that she is barred of her share; not that it is a bar of any covenants he has made; they are, therefore, equally inapplicable. Others, again, are cases of performance of covenants for the payment of money to be made after the husband's death, and which are deemed to be performed by a share of equal value coming to the wife — such as Vezey, 520. But here they contend that no share comes to her. Every case of purchase of her portion, satisfaction or performance of covenants must be laid aside; they are arranged. 2 C. D.; 2 Mont. 10; 3 D., 2. The cases which can be properly cited are those only which tend to prove that a settlement on the wife is of her claim to a distributive share of her husband's estate; and every case of that class will be found to stand upon this principle: that the wife has agreed to accept of the settlement in bar of her share, and that such agreement is expressed or sufficiently implied in the deed of settlement. A settlement alone even of the husband's estate will not bar her. The case in 1 Atkins, 439, is expressed to be in bar; and the Lord Chancellor relied upon this, which he need not (277) have done if the settlement of itself was a bar. The same remarks apply to 2 Vernon, 724; 1 Vernon, 15; 1 Vez., 55. The Lord Chancellor thought it would be in bar of all she could claim as widow if the deed had said the settlement was for a jointure. The same principle prevails in cases of dower: she cannot be barred, although there be a settlement, unless expressed to be in bar. 2 Vernon, 365; E. C. A., 209; 3 Atk., 8; Ress. E. C., 152.
seemed to think it was needless to consider whether or not the feme was entitled to the increase of the negroes, for the deed directs that at her death she may dispose of half, etc., and the other half or remaining part of the said lands, negroes, and other the personal estate of the said Jane Innis, to the use and behoof of the said Francis, etc., part 14; and, therefore, if she was entitled to the increase, besides the half which she might dispose of by will, etc., that was a part of her personal estate, and belonged under this clause to the husband. He seemed to think, also, she was barred of her distributive share by the settlement.
HALL, J., thought that profits by increase of negroes mentioned in part 10 and part 16 did not mean the young negroes born after the making of the deed; and as to her distributive share, he thought that all which either party could claim was fixed unalterably by the deed, and that she was not entitled to claim any more than that had assigned.
Counsel of plaintiff, perceiving the opinion of the Court, dismissed his bill and commenced his suit de novo in the Circuit Court of the United States.