the subject according to the rights of the parties. The bill was not filed to set up a fraudulent deed—that is conceded to be good and valid; the claim, therefore, as preferred by the bill, was proper, and the objection goes, not to the validity of the deed, but to the extent of the rights of the creditors named, as modified by the understanding and agreement amongst them. This, therefore, is nothing more than the ordinary case of a party, who has rights proper to be enforced in a court of equity, claiming more than the proof shews him entitled to. The court in such cases may, in the exercise of its discretion, subject the party to costs; but it cannot refuse relief of some kind. This will appear more clearly if the case is viewed by itself and without reference to the bill filed by the creditors after the institution of the suit by Mallory & Phippen. Could the court, if that were the sole case pending, have dismissed the bill after its jurisdiction had attached and it had actually taken possession of the trust fund? It must of necessity go on to dispose of the fund. If the deed is sustained it could not be restored to the debtor, for he had parted with all right to it. Nor would it be proper to place it in the hands of the trustee, even if, as in this case, he had not declined to act. Nothing would remain for the court to do but to enquire into the rights of the parties and to distribute the fund accordingly. A dismissal of the bill would have been erroneous in the case supposed, and there does not seem to be any distinction between that and the case before us. But in this case the error is aggravated by the decree declaring the deed fraudulent and void; thus precluding the court from ever treating it as a valid subsisting security for any purpose, as between these parties, in any subsequent proceeding. I think the decree should be reversed, and the cause remanded with instructions to hear both causes together, and to distribute the trust fund amongst 1832, January Term. Phippen V. Durham & als. the creditors who have signed the deed and such others of the creditors named therein as may elect to come in and release the debtor according to the terms of the deed. But the other judges differ from me, and the decree is therefore affirmed. 1832. January Term. Richmond. CHARLES. CHARLES. (Absent Cabell, P.) March 4th. 1. The rights of a husband to the property of his intended wife may be intercepted by his agreement to that effect. And where by express contract before and in contemplation of marriage, for which the marriage is a sufficient consideration, he agrees to surrender his right to the enjoyment of the property during the coverture, and his right to take as survivor, there remains nothing to which his marital rights can attach during the coverture, or after the death of the wife. In such a case the wife is to all intents to be regarded as a feme sole in respect to such property; and there is no necessity that the marriage contract or settlement should limit the property to her next of kin upon her failure to appoint, but it will pass as if the wife died sole and intestate. 2. If the husband has relinquished his marital rights to his wife's property, he is not entitled to administration upon her estate. A marriage being about to take place between Henry H. Charles, of the county of York, and Martha P. Wynne, widow of Richard Wynne deceased, a deed, bearing date the sth day of October 1835, was execu ted by the parties for the settlement of her property. This deed recited that it had been agreed between the parties that Mrs. Wynne should, after the marriage, receive and enjoy, during the joint lives of the said Wynne and Charles, the interest and occupation of her personal estate; and also that the same, and the interest and profit thereof, from and after the decease of such of them as should first happen to die, should be at the sole and only disposal of the said M. P. Wynne, notwithstanding her coverture. And that it had been also agreed, that in case the said Charles should, after the marriage, happen to survive the said M. P. Wynne, that he should not claim any part of the real or personal estate whereof the said M. P. Wynne should be seised or possessed or entitled to at any time during the coverture; and that the said real and personal estate of the said M. P.Wynne should be in no wise under the control of said Charles, nor in any manner or at any time subject to his debts. The deed then proceeds to convey in the name of M. P. Wynne to James Kirby sr., with the consent and approbation of Charles, which is witnessed by his sealing the deed, all her property, both real and personal, in trust for Mrs. Wynne until the marriage; then upon trust that Kirby will permit her to enjoy the sole, separate and exclusive use of the said property for her own separate and special use; and upon the further trust that the trustee will permit the said M. P. Wynne to dispose of the said property by deed, will, or otherwise, as she shall think proper; and that he will convey a legal title to the person or persons to whom she may convey the property. This deed was executed by Charles, Mrs. Wynne and the trustee, and duly admitted to record: And the marriage took place. In December 1849 Mrs. Charles died, leaving her husband surviving her, without having disposed of her estate either by deed or will, or otherwise. She left no child surviving her or descendant of a child, though she had had children by her two former marriages; but they had died before her marriage with Henry H. 1832. January Term. Charles V. Charles. 1852. January Term. Charles V. Charles. Charles. Her distributees, if her husband was not entitled to her personal estate, were her nieces, descendants of sisters, of whom one was married to William H. Charles. The slaves belonging to Mrs. M. P. Charles at the time of her marriage never went into the possession of the trustee, but always remained in the possession and enjoyment of Henry. H. Charles, during the coverture. At the April term 1850 of the Circuit court of York county, Henry H. Charles moved the court to be permitted to qualify as the administrator of his late wife, Martha P. Charles; which motion was opposed by William H. Charles, who asked for the administration for himself, on the ground of his marriage with one of the nieces of Martha P. Charles, entitled, as he insisted, to a portion of the estate. These motions came on to be heard together in April 1851, when the court overruled the motion of Henry H. Charles, and granted the administration to William H. Charles. And thereupon an exception was taken to the opinion of the court, and Henry H. Charles applied to this court for a supersedeas, which was awarded. Morson, for the appellant. It is submitted that the decision of the Circuit court was erroneous and prejudicial to Henry H. Charles, and ought to be set aside and reversed. He must, by operation of law, be entitled to the property, unless the deed has intercepted the rule of law, and, by substituting a rule of its own and a rule intended to apply to the emergency which has occurred, has clearly not only taken the property from him, but given it to others. For where, upon a given state of facts, the rule of law turns property over to one man, it cannot be turned over to another by any compact, agreement, or declaration of any party or parties which stops short of clearly giving and manifesting an intention to give it to such other. Heirs cannot be disinherited by the strongest declarations in a will that they shall not take: the will must go further, and designate others who shall take. Boisseau v. Aldridges, 5 Leigh 222. By similar reasoning, husbands cannot be deprived of their rights of property arising "jure mariti" by a deed which shall even declare that they should not have them, unless the deed further provided that they should go to others. If they be not by the deed, in the event that has occurred, turned over to any body, then it is not a "casus fœderis," not a case which the deed has provided for, but a 66 casus omissus," one for which a rule must be found, not in the deed, but in the general principles of the law. And these general principles give the property to the husband; enable him to qualify as the wife's administrator, and afterwards to keep possession absolutely for his own benefit, subject only to the payment of her debts. See 1 Lomax's Ex'rs 135, 136, 310, 311; Tate's Dig. 394-5, § 7. See also Code of Virginia of 1849, p. 541, § 4. Even should it be held, then, that the words of the deed manifested an intention to take the subject from the husband upon the contingency that has happened, they failed to give it to others and only authorized the wife so to give it; and this she has never done. Of consequence neither the deed nor the wife has ever yet given the subject to others; and if given to others it can only be by operation of law. But there certainly is no rule of law which, under the circumstances, can give the property to others; though there is the general rule of law which does give it to the surviving husband. It is worthy of remark that, in the recital of the deed, as well as in the express declarations of trust, while great care is evinced to secure the property to the separate use of the wife, and to give her the power to dispose of it, there is an utter absence of any expression or provision to point out how it is to go in case of 1852. January Term. Charles V. Charles. |