Peter Vivian Daniel

“ 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 ”

“ 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. ”

“ As a deed executed by her in her capacity of a feme sole as to her separate estate, and not restricted to the particular form of alienation directed by the settlement, no written attestation of witnesses appended to the deed was called for by the act of Assembly regulating conveyances; it is enough if the deed be proved to be her act by three witnesses before the proper court; and it is so proved.
They need not be subscribing witnesses. Act of Assembly regulating conveyances ”

“ What is the construction and effect of the marriage settlement, and what powers did it confer or restrain?
2d. Have its terms and power been duly executed, so as to make a valid appointment or execution thereof?
3d. Will equity aid the defective execution?
4th. Has the complainant by her own acts precluded herself from the relief prayed, in respect to the property withheld from her? 5th. Has she not a clear right to the shares of turnpike stock?
6th. Is she not entitled to be quieted in the unsold property, at least to have the deed as to that cancelled? ”

“ 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. ”

“ Ladd's jus disponendi, or power of appointment, was restricted to the annual interest, rents, and profits, and did not extend to the land itself.
Answer 1. The settlement extends, plainly and expressly, both to the land and to the rents and profits.
Answer 2. The land itself passed, ex vi terminorum, under the terms 'all the interest, rents, and profits.'
Devise of 'issues and profits' of land, all one with a devise of the land itself. Parker v. Plummer, Cro. Eliz., 190.
So a devise of the 'occupation and profits' of a house and park is a devise of the very house and park. ”

“ 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. ”

“ That what it does authorize has not been formally appointed or attempted to be.
3d. That as against this feme covert, under all the cases and all the circumstances, equity would not cure the defective execution.
And if there was a resulting separate equitable estate in Mrs. Ladd, with no power to alienate it in any mode, we have shown, first, that the express power to appoint during coverture negatives all other powers; secondly, that in Virginia separate real estate can only be disposed of by deed, &c., with privy examination. ”

“ The bill charges force and fraud,-the undue exercise of marital power, &c., & c., as the inducements that forced the complainant against her will, into the execution of the deed in trust to Hooff, subjecting a portion of her separate estate as collateral security, &c., &c. ”

“ Feme covert's rights are choked and suffocated by her silent acquiescence, even though her covin be united with that of her husband.
Savage v. Foster, 9 Mod., 35, 37; 1 Rob. (La.) , 244. Married women are as much bound as their husbands to be honest;-equally necessary for them to come with clean hands into a court of equity. ”

“ This same conduct of the feme, her positive co operation 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 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. ”

“ 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 for ever; upon such trusts, and for such uses, intents, and purposes, as are hereinafter mentioned ”

“ HARRIET V. NICOLL, [SEAL.]
JOHN H. LADD. [SEAL.] '
On the 1st of 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. ”

“ Ladd's application to extend the credit payments, her request to divide the property for sale, and her conversing with the trustee Hooff on the premises on the day of sale,-do all these circumstances amount to fraud in bar of her equity?
We contend not. ”

“ Even were the deed in trust to Hooff defective, a court of equity would lend its aid in favor of a creditor. 1 Story, Eq. Jur., §§ 95, 96, 97, 169, 170, and cases there cited. A feme covert may bind her separate property, for her own or husband's debts, and will be held to a specific performance of her contract. ”

“ 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 the 6th of October, 1845, the cause came on for hearing, when the Circuit Court dismissed the bill, with costs. The complainant appealed to this court.
The cause was argued by Mr. May and Mr. Brent, for the appellant, and Mr. Francis L. Smith and Mr. Jones, for the appellees. ”

“ 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 the 9th day 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. ”