#### Stubbs v. Whiting.

March, 1823.

Marriage Settlement. — A marriage settlement made after marriage, in pursuance of articles entered into before marriage, is to be controlled by the articles.

This was an appeal from the chancery court of Williamsburg.

Isabella C. Fox¡ before her marriage with Emanuel Jones, entered into a marriage settlement, by a deed duly executed and recorded, by which the said Jones conveyed sundry slaves of his own and all the property to which he might be entitled by the marriage aforesaid, in trust for the sole and separate use of the said Isabella, her heirs and assigns; and covenanted that he would, at any time during the coverture, ratify and confirm any disposition that the said Isabella might think proper to make, of all or any part of the slaves or other property so conveyed.

*The marriage took place; and some years afterwards, the said Jones died, leaving two infant sons, Emanuel Macon and William Booth Jones. The decedent left also a will, by which he gave his widow the power of selling or otherwise disposing óf his estate called Woodstock, and a sum of money that he expects from a suit then depending; and at her death, he desired that his estate might be equally divided between his said two sons, If either of them should die before twenty-one, or marriage, leaving no issue, the survivor was to receive the portion of his deceased brother; but, if the said Isabella should survive both her children and their issue, he gave her the said estate in fee-simple. The testator appointed the said Isabella, and two other persons his executors, desiring at the same time, that the said Isabella might act without the interference of the other executors, if she was so disposed, and that no security whatever might be required of her.

The said Isabella alone qualified, without giving security, according to- the directions oí the will. *i*

In the year 1815, Isabella Jones married John S. Stubbs, senr., having previously entered into articles of agreement with the *121said Stubbs, by which it is agreed, that all the property of the said Isabella, should remain subject to her own control and disposition, freed from the marital rights of the said Stubbs and that all the property of the said Stubbn, should be free from the tower and other matrimonial rights of the said Isabella; giving her an unlimited power of disposition during the coverture, and if she survived the said Stubbs, without having made any disposition of the said property, then to the only use and behoof of the said Isabella, her heirs and assigns forever.

After the marriage between the said Isabella and the said Stubbs, viz: on the first day of April, 1816, a deed of settlement was executed in pursuance of the said articles, in which Francis Whiting was made the trustee; by which all the property real and personal which had been settled on the said Isabella by the deed first mentioned, and *the will of Emanuel Jones, was settled on the said Isabella and her children Emanuel Macon and William Booth Jones or to the use of any other person she might appoint by deed or will.

John S. Stubbs died in 1821; and the said Francis Whiting, the trustee in the last mentioned deed, filed a bill in the county court of Gloucester, suggesting, that the said Isabella was about to convey a part, if not the whole of the said slaves, and other personal property, out of the state, and praying that the sheriff might go forthwith and take possession of the negroes and other personal property, disposed of for the benefit of the said Isabella and her children, the said Emanuel Macon and William Booth Jones.

The county court made an order restraining the said Isabella C. Stubbs from removing the negroes and other property belonging to the estate of Emanuel Jones deceased, beyond the jurisdiction of the said court; and that the sheriff should forthwith take possession of all the said negroes and other property, and hire the negroes for the benefit of the defendant and her children, Emanuel Macon and William Booth Jones, and should keep the other property- in his possession, subject to the future order oí the court.

Isabella C. Stubbs answered the bill, and affirmed that the deed of trust last mentioned, was executed for the sole purpose ol protecting her properly from the marital rights of John S. Stubbs, and for no other purpose; and that she considered the whole of the said property as her own, which she intends to remove at her own rime and pleasure.

An appeal was allowed to the interlocu tory decree aforesaid, to the chancery court of Williamsnurg.

The chancellor íeversed the said decree, and commanded the sheriff of Gloucester, and all persons claiming under it, to return to the appellant all the said property taken from her in pursuance of the said interlocutory decree. And the court injoined the said Isabella, the *appellant, from conveying *cut of*the commonwealth, or permitting any person to whom she shall not have bona fide conveyed by deed made *in execution*of the power given to her, two-thirds of the property conveyed by John S. Stubbs, and wife, to Francis Whiting: that the marshal of the court should take into his possession, two-thirds cd the slaves and their increase, upon the appellee entering into a bond in the penalty of $1000, with condition to pay to the appellant all damages which she might sustain by reason of this order, if the same should be reversed or annulled; and unless the appellant shall, upon being served with a copy of this order, enter into bond and security, in the penalty of $10,000, with condition that two-thirds in number and value of the said slaves and their increase, shall be forthcoming to answer any future decree of the court in the premises; but, if the said bond should *not*_ be given within ten days fiom the service of this order, then the marshal should hire out the slaves so taken, until the end of the year, &c.

An appeal was allowed to Isabella C. Stubbs, the appellant, on her motion.

Leigh, for the appellant.

By the marriage settlement of Emanuel Jones and IsabeFa C. Fox, the appellant, and by her surviving him, she became entitled to the property in question, absolutely. The will of the said Jones cannot have any influence on property, which had been before conveyed by deed.

By the articles entered into with Stubbs, the second husband of Isabella C. Jones, all her individual rights over the property in question were preserved to her, free from the control of her intended husband; and it is expressly provided, that in case of her surviving him, (the event which has happened,) she should be remitted to all the estate which she had before the marriage. The estate was not joint, to her and her two children by Jones; but it *was expressly placed under her entire control, both by the marriage agreement, and by the settlement made after marriage and intended to carry the e greement into effect.

But, if the articles and the deed are at variance, the articles ought to be preferred; more especially where the deed, (as in this case,) professes to follow the articles. The articles are made before marriage; (he deed afterwards; and the authorities are explicit, that in such case, the articles will be set up.(a) The chancellor, therefore, erred in requiring her to give bond, that she would not remove the property conveyed by the articles, out of the state; but, if there is any property given by the will of Emanuel Jones, not comprised in the marriage agreement with him, a restraining order may be proper.

No counsel for the appellee.

(a)

 1 Fonb. Eciu. 190, n. p.

JUDGE BROOKE,

March *14.*— delivered the opinion of the court.

The court is of opinion, that the appellant having survived her first husband Emanuel Jones, took an absolute estate in all the property comprehended in the mar-rage settlement, bearing date the 23d of February, 3803; and that the deed of set*122tlement, of the 1st day of April, 1816, executed by her second husband, John S. Stubbs, and herself, to the appellee, was intended by the parties to be made in pursuance of the marriage articles, entered into between them, before marriage, and bearing date the 18th of July, 1815, and must be controlled thereby; by which she having survived the said John S. Stubbs, again became entitled, in absolute right, to all the property included in the marriage articles first above mentioned. The decree, therefore, so far as it restrains the appellant from removing, or otherwise using that property, is erroneous, and must be reversed with costs.

*And the cause is remanded to the court of chancery, for an enquiry to be made, whether the marriage articles and deed of settlement, between the appellant and her last husband John S. Stubbs, embraces any other personal estate, than that derived to her in and by the marriage settlement aforesaid, between her and her first husband Emanuel Jones, which she holds as executrix of the will of the said Jones; and in that event, further to en-quire, whether she has given sufficient security as executrix, and if not, to take such measures, as may be proper and effectual, to compel her to give such security; or otherwise to provide for the preservation of such property, and its ultimate disposition, according to the rights of the parties interested therein But, in case such security shall have been given, then the bill is to be dismissed.