#### *Wilcox v. Hubard and Others, and Hubard v. Wilcox and Others.

Argued November 16lli, and mb, 1814.

1. Dower* — Relinquishment — Deed of Conveyance-Case at Bar. — The real and personal property of an intestate being undivided, between his widow, (who was also administratrix,) and his only child, a daughter; and the marriage of the latter being about to be solemnized; a deed of settlement by the daughter and her intended husband was executed, conveying to the trustees (of whom the mother was one,) certain tracts of land by metes and bounds, and slaves by name, describing them as the property of the daughter; the same being, in fact, all the lands and slaves of which the intestate died seised and possessed. It was determined that the mother’s right to dower of the lands, and thirds of the personal estate, of the intestate, was not relinquished by her being a party to this deed.

2. flan-iage Settlemeiit† — Construction.—A deed of marriage settlement, conveying “all the lands, slaves, goods, chattels and property” of the wife, includes her choses in action; so that a sum of money due to the wife before the marriage will not, when recovered, belong to the husband, but to the trustees, for the uses specified in the deed.

3. Arbitration-Submission‡- By Parties Having No Control of Subject Matter. — In such case, therefore, a submission to arbitration of a controversy concerning a debt to the wife, being made by the debtor with the husband, is void, as relating to a subject not in their power to control.

These two causes were heard together in the Superior Court of Chancery for the Richmond District, and also in this court.

The bill, in the first instance, was filed by Susanna Wilcox, widow and administratrix *148of Edmund Wilcox, deceased, against James T. Hubard and Susanna his wife, (who was daughter of the plaintiff.) Edmund W. Hubard their infant son, and Samuel Allen and Thomas West, who, together with the plaintiff herself, were the trustees in a deed of settlement, executed previous to the marriage between the said James T. Hubard and wife. Its object was to set aside an award, which had been made in consequence of a submission, by the plaintiff and the said James T. Hubard, of sundry matters in controversy between them, in relation to the construction of the said deed, and the settlement of her accounts, as administratrix of her husband and guardian of her daughter.

Sundry objections to the award were set forth in the bill; among which, the most important was, “that all the parties to the deed were not parties to the submission ; that, from the nature of the matter in controversy, no such submission could be made, so as to be valid and binding on all the parties concerned in interest; Mrs. Hubard not being a party, *nor her infant child; and all the future issue of the marriage being interested as purchasers, and not being bound by the award.

The práyer of the bill was, that the award be set aside; that the accounts of the plaintiff, as administratrix and guardian, be settled by a commissioner of the court; that an account be taken of the profits of the lands and slaves, and her portion thereof allotted her ; and that if, (contrary to her expectation,) any balance should be found to be due from her, it should be disposed of according to the stipulations of the said marriage agreement.

The defendant James T. Hubard, in his answer, insisted that a large balance in money was due to his wife, at the date of the marriage settlement, from the plaintiff as her guardian, and as administratrix of Edmund Wilcox, which balance belonged to himself as husband, and was not comprehended in the deed ; that he considered all the negroes and lands enumerated in the marriage agreement as settled to the uses mentioned therein, and not subject to the plaintiff’s claim of dower. He combated the several objections taken by the plaintiff to the award ; but, on his part, contended, that a fair and full account had not been laid before the arbitrators, and that the sum awarded against the plaintiff was too small.

The other was a cross bill exhibited by him and wife, against Mrs. Wilcox and the other parties aforesaid; requiring her to supply the defects, which he alleged, in the account upon which the arbitrators acted ; praying a decree for the amount awarded, and for a farther amount; and also repeating the position that she was not entitled to any dower after the date of the deed.

Mrs. Wilcox, by her answer, contradicted the statements in the cross bill generally ; and, admitting that the whole of the estate of Edmund Wilcox, deceased, was comprised in the deed, without mentioning her dower right, averred', that it never was considered, or contemplated, by the parties thereto, that her dower right was to be in any manner whatever affected thereby; that the whole estate was enumerated and *in-eluded, “first, because no division thereof had taken place between this defendant and her daughter ; (consequently, neither of their shares, or proportions, had been identified ;) and, secondly, in order to secure to this defendant’s said daughter and her issue, agreeably to the contract, the reversionary interest to this defendant’s dower right in the lands and slaves; and not for the purpose of yielding said defendant’s right. ”

The deed in question, made the 8th day of May 1805, after commencing by stating its date and the names of the parties, proceeded as follows: “Whereas a marriage is intended shortly to be had and solemnized between the said James T. Hubard and the said Susanna Wilcox the younger, and it has been agreed between them that the estate real and personal of the said Susanna Wilcox the younger should be settled and secured to her, and her children which she may hereafter have ; now this indenture witnesseth, &c.” that, “they the said James T. Hubard and Susanna Wilcox the younger do hereby covenant and agree, that the said Susanna Wilcox the elder, Thomas West and Samuel Allen, shall stand and be seised and possessed of the following tracts of land, now owned by her, the said Susanna Wilcox the younger that is to say, &c. (describing each tract;) “also thirty-five negro slaves, on two plantations in the county of Amherst, called and known by the following names, to wit, &c.; also forty-seven negro slaves, in the County of Buckingham, called and known by the following names, to wit, &c. ; making, in the whole number, eighty-two ; with the increase of the females of them; and all the other lands, slaves, goods, chat-ties and property of her the said Susanna Wilcox the younger; to them, the survivor of them and his heirs and assigns forever, in trust, and upon this special confidence, that they shall permit the said Susanna Wilcox the younger to have and receive the profits thereof, to her sole and separate use, until the said marriage shall “take effect; and, from and after that period, to the joint use of the said James T. Hubard and the said Susanna Wilcox during their joint lives; _ and, on the decease of either of them, ' to the use of the survivor *for life ; and if the said James T. Hubard should survive his said intended wife, and she should leave issue, then to the children of the said marriage and their heirs, equally to be divided between them : and, if she should survive him, then to the use of all the children, of this or any future marriage, whom she may leave, or their issue, equally to be divided, the representative of any child to stand in the place of its parent, &c.”

Chancellor Taylor was of opinion, that, by the deed of settlement, Mrs. Wilcox was barred of her dower in the estate of her late husband Edmund Wilcox, subsequent to the date of that deed, because, being one of the trustees, and suberibing the deed, and undertaking to stand seised to the several uses thereby created, it would be, in fact, to allow to her dower against her own deed ; particularly, as she was privy to the provisions therein contained, and never intimated that she had, or should make, such a claim ; and, hence, to allow it would be a fraud upon the marriage; *149but in her account of administration she may be allowed one-third of the profits of the estate, before the execution of that deed; which will be an equivalent for her dower to that period, as the deed hath no retrospective operation upon those rights surrendered thereby.” It was therefore decreed, that so much of ihe bill in the first suit, as sought dower in the said estate subsequent to the date of the said deed, be dismissed.

The chancellor was also of opinion, that “James T. Hubard hath no right or interest under the said deed of settlement, other than in the profits of the estate thereby settled, in common with his wife, for life; and, in the event he survives her, then for his own life; and that, by the said deed of settlement, the whole estate of his lady real, and personal, was conveyed in trust for the purposes therein mentioned, so that any money which may be due from the said Susanna Wilcox upon a settlment, will be due for these purposes ; except as to the interest since the marriage, which will belong to the said James T. Hubard, in like manner with the profits ; and, therefore the submission by the said James T. Hubard and Susanna Wilcox, in the proceedings mentioned, *being in relation to subjects not in their power to control, the award made in pursuance thereof is, for that reason, set aside.” It was therefore further decreed, that the said Susanna Wilcox do make up an account of her administration of the estate of Edmond Wilcox, deceased, agreeably to the foregoing opinion, and also of her guardianship of her daughter, before a commissioner, who was ordered to make a liberal allowance to the said Susanna Wilcox, for the annual expenditures of her said daughter, and also to make up and settle an account between the said James T. Hubard and the said Susanna Wilcox, and between the said Hubard and the trustees named in the said deed of marriage settlement, and report the same to the court.

From so much of this decree, (pronounced in September, 1811,) as related to her claim for dower and distributive share of the estate in the said decree mentioned, Susanna Wilcox prayed an appeal, which was allowed by the chancellor, under the second section of the act, “concerning the proceedings in chancery, and for other purposes,” passed January 15th, 1807. See Rev. Code, 2 vol. p. 129.(1)

Wirt and Wickham for the appellant.

Williams for the appellees.

January 23d, 1815,

*

See monographic *note*on “Dower” appended to Davis v. Davis, 35 Gratt. 587.

†

See monographic *note*on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.

‡

See monographic *note*on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.

(1)

 Note. For the law, now in force, concerning appeals from interlocutory decrees, see acts of 1815, ch. 8, p. 17. — Note In Original Edition.

the president pronounced the following opinion of this court.

The court, on consideration of the deed of settlement in the proceedings mentioned, unconnected with other proofs in the cause, tending to explain the intention of the parties as to its objects, is of opinion, that it is not susceptible of the construction given to it by the Court of Chancery, so far as that construction rejects the claim of Susanna Wilcox, the elder, to dower in the lands, and to her thirds of the personal estate of her late husband, Edmund Wilcox. The ^expression in the first part of the deed, “the estate real and personal of the said Susanna Wilcox, the younger,” (which certainly does not include the estate of Susanna Wilcox, the elder,) in connection with other expressions following in other parts of the deed, such, for example, as the one, “now owned by her,” and in relation to Susanna Wilcox, the younger ; in the opinion of the court amply evinces the intention of the parties to limit its operation to the conveyance of her interests, exclusively of her mother’s ;— nor can the court perceive the force of that reasoning which, relying on a general description of the property in other parts of the deed, would include the estate of Susanna Wilcox, the elder, by confounding the distinction between the property described and the interest of the mother and daughter therein ; in direct contradiction to the previous expressions, and others which might be relied on in the deed.

The court is therefore of opinion, that so much of the decree, in both suits, as rejects the claim of Susanna Wilcox, the elder, to dower in the lands of her deceased husband, Edmund Wilcox, and to her thirds of his personal estate, be reversed, and the residue thereof affirmed, and the causes remanded, to be farther proceeded in, conformably to the foregoing opinion.