#### *Eidson v. Fontaine, Adm’r &c. & al.

July Terra, 1852,

Lewisburg.

1. Postnuptial Agreements- -Relinquishment of Husband's Right to Wife's Property — Effect*—Case at Bar. —E being about to marry F. executes a deed, by which he authorizes her during their lives or at her death, to control and dispose of her property in as full and ample a manner as she could do if she were not his wife; and he relinquished to her all right and title to the said property which he might acquire, by the marriage. On this deed there is an indorsement of the same date executed by E and F. which says, “It is further understood and agreed upon between us, that should she die first, I am to retain the property and have the use oi it during my natural life; but at my death it is to go to the person or persons which it may be her will or desire should have it.” The wife may give away or dispose oi the property in her lifetime ; and the husband is only entitled to a life interest in that which remains at her death.

2. Executors and Administrators — Suit against-Costs.† — A suit is instituted against an administrator a few months after his qualification, for distribution, when he had received no assets of the estate; during the progress of the cause he receives assets for which the plaintiff is entitled to a decree; but as the administrator has been in no default, he is entitled to a decree for his costs against the plaintiff.

This was a suit instituted in March 1847, in the Circuit court of Augusta county, by Henry Eidson against Walter H. Fontaine, administrator with the will annexed of Catharine M. Eidson, the wife of the plaintiff, and William Fontaine as his surety. The bill charged that in 1834, the plaintiff being about to be married to Catharine M. Fontaine, a marriage contract was entered into, by which she was authorized to dispose of her property by her last will. That in 1842 she died, after having made her will; and that Walter H. Fontaine had qualified as administrator with the will annexed, with William Fontaine as his surety. That by the marriage agreement the plaintiff is entitled to the use of the said property for his life. That in 1838 *the plaintiff and his wife united in selling a tract of land in Goochland county belonging to the wife, at the price of 2000 dollars. That of this purchase money 265 dollars 70 cents had been paid to the plaintiff, which he had secured to be forthcoming to the estate of said Catharine at his death. That the balance of said purchase money, being 1734 dollars 30 cents, was retained by said Catharine, or perhaps loaned by her to her brothers, and at her death constituted a part of her estate. That the plaintiff had never received any part thereof, or the interest thereon. That he is advised he is entitled to the use of this money for his life, or the interest upon it. And he prayed that the administrator might be decreed to pay to the plaintiff the interest which had accrued upon said balance of purchase money; and that he might be compelled to pay over to the plaintiff the principal sum, upon his giving security to have it forthcoming at his death.

The administrator answered the bill, and contested the construction put upon the marriage agreement by the plaintiff. He insisted that the wife had full power to dispose of her property either in her lifetime or at her death; and that the plaintiff was entitled to the enjoyment for his life of such of the property as remained at the death of his wife. That as to the purchase money of the land sold by the plaintiff and his wife, the purchaser paid for it by assigning to Mrs. Eidson a bond on William O. Payne for the sum of 897 dollars 28 cents, and a bond on her brother C. R. Fontaine, for 800 dollars, with its interest up to the date of the conveyance; which two bonds extinguished the whole purchase *money,*except the sum of 265 dollars 70 cents, which was paid in cash to the plaintiff. That the bond of William O. Payne had long since been paid to the plaintiff, who had executed a deed of trust to secure the sum of 1000 dollars, of which this was a part. And that, as to the other bond, the plaintiff *well knew that Mrs. Eidson had long since given it up to her brother R. C. Fontaine, the obligor. That the defendant had no estate of his testatrix in his hands, nor had he had any since his qualification as administrator, the whole thereof having been in the possession of the plaintiff.

The marriage agreement bears date the 6th of February 1834, and is executed by Henry Eidson alone. It says: "Being about to marry Miss Catharine M. Fontaine, and being desirous that she shall, in future, during our natural lives, or at my decease, or at her decease, have the full power and privilege of disposing of the property both real and personal, which she may now possess, or shall get or possess from her father’s estate hereafter, I do by these presents release and relinquish to her, the said C. M. Fontaine, all the right and title which I may or shall take upon me, or shall fall to me by my intermarriage with her; and it is my express wish and intention to give to her entire control and perfect right to dispose of the property heretofore referred to, in as full and ample a manner as she would have if she had not become my wife.”

On this deed was an endorsement of the same date, executed by Henry Eidson and Catharine M. Fontaine, which says, “It is further Understood and agreed upon between us, that should she die first I am to retain the property and have the use of it during my natural life, but at my death it is to go to the person or persons which it may be her will or desire should have it.”

There is another endorsement on the deed, bearing date July the 20th, 1834, signed by Eidson, which says, ‘ ‘It is hereby understood and agreed that the provisions of this contract are not intended to exclude my wife Catharine M. from her right of dower in my estate should she survive me. ’ ’

*146The will of Mrs. Fidson was ad-miffed to próbat in *the County court of. Augusta in October 1846, when Walter S. Fontaine qualified as administrator with the will annexed. By it she bequeaths all the estate of which she may die possessed, to be equally divided between all her nephews and nieces that may be alive, at her death.

Fontaine’s administration account was settled in the progress of the cause; and it appeared that the only assets which came to his hands was a bond, which was paid off in April 1848, amounting at that time to 148 dollars; and that after crediting him with the expenses of his administration, there remained in his hands the sum of 95 dollars 34 cents, due 1st of April 1848. It also appeared that the bond for 800 dollars on C. R. Fontaine was put into his possession by Mrs. Fidson some time before her death, and that the other property of Mrs. Fidson was in possession of the plaintiff.

The cause came on to be heard in July-1848, when the court held that Mrs. Fidson had the right under the marriage agreement to dispose of her property in her lifetime as she pleased; and that the whole sum of 1736 dollars 30 cents had been disposed of by her as stated in the answer of the defendant, who was in no way accountable therefor. And the decree was, that unless the fund in the administrator’s hands was necessary to meet unsatisfied liabilities of his testatrix, he should pay it over to the plaintiff upon his giving bond, &c. And the bill was dismissed in all other respects with costs to the defendant: whereupon the plaintiff applied to this court for an appeal, which was allowed.

Fultz, for the appellant.

There was no counsel for the appellee.

*

See monographic *note*oil “Husband and Wife.”

†

See monographic *note,*on “Executors and Administrators”; also, monographic *note*on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.

*MONCURE, J.

I do not concur in the construction placed by the court below on the marriage contract and memorandum thereto subjoined as part thereof in this case, but am of opinion that the memorandum was intended to reserve to the husband, in the event of his surviving the wife, a life estate in all the property of which the jus disponendi is given to her by the contract. Still I am for affirming the decree. The administrator of the wife is not accountable for any property which may have been disposed of by her in her lifetime; such disposition being as binding on him as on her. The claim of the husband for such property, if any, is against the person who has it in possession. The court was therefore right in dismissing the bill, so far as it claimed relief for any such property; and also in decreeing the payment of the administrator’s costs, he not being in any default.

DANIEL, J.

I think the judge of the Circuit court has given the true construction to the marriage articles entered into between the appellant and his deceased wife, Catharine M. They were carelessly and in-artificially drawn, and the effort to interpret their meaning should be freed as far as possible from the restraint of technical rules.

_ In the body of the instrument, which is signed by the appellant only, he makes, in anticipation, a full surrender and release of all the rights which he might otherwise have acquired in the estate of his intended wife, real and personal, in possession or expectancy, and concedes to her the power to dispose of the same, after marriage, “in as full and ample a manner” as if she had continued a feme sole. Then follows the memorandum, which bears date on the same day with the original instrument, and is signed by both of the parties. It is short, and is in these words: “It is further understood and agreed upon between us, that ^should she die first, I am to retain the property and have the use of it during my natural life, but at my death it is to go to the person or persons which it may be'her will or desire should have it.” I concur with the judge of the Circuit court in thinking that the office of the language employed in the memorandum is fully performed in giving to the husband surviving a life estate in such of the property as remained undisposed of by some act or instrument of the wife operating and taking effect in her lifetime, and which she should dispose of by will or other instrument,to take effect after her death.

The body' of the articles and the memorandum bear date on the 6th February 1834. There is a further memorandum or endorsement of date 20th July 1834, signed by the appellant only, and which is in these words: “It is hereby understood and agreed that the provisions of this contract are not intended to exclude my wife Catharine M. from her right of dower in my estate, should she survive me.” It is argued by the appellant in his petition for an appeal, that all the parts of the instrument must be taken together; that by the last memorandum the dower rights of the wife are fully .secured to her; that it is equally clear that it was the intention' of the parties, as the husband had secured the dower rights of the wife in consideration thereof, that there should be secured to him a life estate in the separate property of the wife: and that while the full benefit of the articles is claimed for the wife against the husband, it is but right that he should have extended to him the benefits of the provisions as against the property of the wife.

It is true that where there is any doubt as to the true import of the language employed by the parties in one part of an instrument, other parts may be looked to and con-suited, and may furnish much aid*in disclosing the true motives and intentions of the parties, and in resolving the doubt. But I do not think that there is any reasonable doubt here as to what the parties meant and intended by the agreement and memorandum of the 6th of February 1834. The wife would have been entitled to dower whether the memorandum of the 20th July had been added or not, there being nothing *147in the preceding- articles or memorandum from which a purpose on her part to waive or abandon that right can be inferred. With this in view, and looking to the order of time in which the several parts of the instrument were executed (regarding the memorandum of the 20th July in this aspect of the case as part of the instrument), the fair inference is that the first parts of the agreement were made uninfluenced by any agreement on the part of Eidson to enter into such a stipulation as that embraced in the said last mentioned memorandum, and that it was afterwards endorsed out of abundant caution, and to shut out all possible implication that the right of dower was surrendered by anything contained in the marriage articles. In this view I do not see how the said memorandum can reflect any light on the preceding parts of the agreement, or exert any influence on their construction. But there is another, and to my mind a conclusive reason, why the said memorandum should not be looked to as disclosing any motive or consideration to bear on the construction of the instrument favorably for the pretensions of the appellant. It is not stated in the bill or answer when the parties were married, but the fair inference to be drawn from the language of the memorandum is that it was endorsed after the marriage. “The provisions of this contract are not intended to exclude my wife,” &c. If so, the endorsement, however it might bind the husband, could neither be regarded as part of the '^original contract nor as explanatory thereof, so as to affect injuriously the claims and pretensions of the wife. Tabb v. Archer, 3 Hen. and Munf. 399.

Upon the whole, I see no reason to question the correctness of the interpretation of the contract given by the judge of the Circuit court, or of the decree which he has rendered.

It is true that there was a balance appearing due the appellant on the settlement of the administration account for which he obtains a decree. The administrator, however, was in no default, the suit having been brought within five or six months after his qualification. Costs were, therefore, properly given to the appellee as the party substantially prevailing.

I am for affirming the decree.

The other judges concurred in the opinion of Daniel, J.

Decree affirmed.