#### Elisha Carson, Assignee, *vs.*A. B. O’Bannon, and others.

By marriage settlement of wife's property, husband was entitled to receive the rents, issues, hire and profits, for the mutual benefit and support of himself and wife, but not to be in any manner subject to his debts, contracts and engagements. Husband and wife separated, and husband assigned his interest under the insolvent debtors’ *Act:*— Held, that the assignee was entitled to receive one moiety of the rents, issues, hire and profits, and the wife the other moiety to her sole and separate use.

By the settlement, the trustees were empowered to sell a house and lot, and reinvest five thousand dollars of the proceeds, subject to the trusts of the settlement — the balance, if any, to be for the use of husband and wife, free of any trust. The premises were sold for seven thousand dollars *:*— Held, that the assignee was entitled to one moiety of the proceeds after deducting the five thousand dollars, and certain charges to which the balance was held first liable.

A previous separation had taken place between husband and wife, and husband had filed a bill against the trustees for an account. The parties became reconciled, again lived together, and, thereupon, it was decreed by consent, that the counsel fees and costs be paid out of the trust estate, and the trustees released from accounting before the master, as had been before ordered in the *cause:*— Held, that this was no adjudication and settlement of the rights of the parties, except as to the liability of the trustees to account to the husband up to the time of the decree.

The wife’s equity to a further settlement claimed in her behalf, but not allowed by the Court.

BEFORE DUNKIN, OH., AT CHARLESTON, FEBRUARY, 1853.

DuNKIN, Ch. Augustus Benjamin O’Bannon took the benefit of the insolvent Debtor’s Act, at Barnwell Court, in March, 1849. The plaintiff, E. Carson, was appointed assignee. In the schedule was included such interest as the petitioner had under the marriage settlement hereinafter to be mentioned, and also whatever interest he had under a decree made in Charleston district, in February, 1848. These proceedings were insti*220tuted on 8th August, 1849, for an account from the trustees under .the marriage settlement, and to have the interest of the defendant, A. B. O’Bannon, subjected to the payment of his debts.

It appears that in 1829, A. B. O’Bannon was about to intei'-marry with Henrietta Portner Schmidt, and, in contemplation of that event, a house and lot of land at the corner of Market and King streets, in the city of Charleston, together with two slaves, being the property of the lady, were conveyed and assigned to her mother, Elizabeth Schmidt, and her brother, John E. Schmidt, in trust for the purposes therein declared. These uses were, among others, “ to permit and suffer A. B. O’Ban-non, the intended husband, during the joint lives of himself and his wife, to receive and take the rents, issues and profits of the real estate, and the hire and profits of the personal estate, for their mutual benefit and support, but not to be in any manner subject to the debts, contracts and engagements of the said A. B. O’Bannon ; after the termination of their joint lives, the rents, &c., were to be held for the use of the survivor during life, and afterwards for the issue of the marriage living at the death of the survivor, absolutely. In default of such issue, then to the heirs at law of the wife, their heirs and assigns, absolutely, and forever.” But it was further provided, that in the event of the survivorship of the wife, and no issue of the marriage, the property should pass to such person or persons as she might by deed, or will, duly executed, direct, limit and appoint the same. It is also provided, that in case it might thereafter be deemed advantageous to sell the said property, or any part thereof, the trustees should be authorized to dispose of the same, “ upon receiving from the said Henrietta Portner a written request to do so, which request shall be signed by the said Henrietta, in the presence of two or more credible witnesses ; and that the trustees should immediately thereafter re-invest the proceeds in other property, to be held subject to the same uses *j with the exception,*however, that should the aforesaid *221bouse and lot be so sold, the sum of five thousand dollars ($5,000) only, shall be in trust to and for the same uses as those already expressed. The balance of the purchase mon^r for the said house, after deducting the said sum of five thousand dollars, if any balance there be, shall be for the use and benefit of the said A. Benjamin O’Bannon, and Henrietta Portner Schmidt, his intended wife, free and absolutely discharged of and from any other or further trust.”

The marriage took place in April, 1829; and the trustees, in the proper discharge of their duties, caused the premises at the corner of Market and King streets to be insured. In the memorable conflagration of 1838, the house was consumed, and the trustees received from the insurance company, the sum of six thousand four hundred and twelve dollars and fifty cents, and they afterwards sold the vacant lot to Nathan Hart for seven thousand dollars.

The parties lived together until 1842, in the district of Barn-well. In consequence of some unhappy differences between them, Mrs. O’Bannon came to Charleston and resided with her mother, Mrs. Elizabeth Schmidt.

In January, 1845, A. B. O’Bannon filed his bill in this Court against the trustees to the marriage settlement, praying an account according to his rights under the settlement. To that bill the wife was also made a party defendant; the fact of her returning to her mother in Charleston is stated, and that, since that period the trustees had ceased to pay him any part of the income. The answer of the wife relied on certain acts of misconduct on the part of her husband as a justification of her withdrawal; and the answer of the trustees referred to the facts thus set forth in the answer of their co-defendant as their reason for declining to account to the husband. After the hearing of that cause in June, 1847, the court passed a decree declaring that the trustees should account before the master for their transactions in the manner and to the extent specified in said order, and that the grievances of the wife, whatever they *222might be, as well as her claim for relief and redress, were"the proper subject matter for a cross bill on her behalf, and that no final order would be made upon the rights of the parties until Mrs. O’Bannon had had an opportunity of filing a cross bill or instituting such other proceedings as she might be advised. The decree was filed 26th February, 1848. At this stage the solicitors of the parties used their influence with their respective clients, and a reconciliation was effected. The husband and wife again lived together; and on the 6th July, 1848, the following order was entered by Chancellor Dai-gan: “ O’Ban-non *vs.*O’Bannon, et al. On hearing Mr. Simons for the complainant, and Mr. Hunt for the defendant, it appears that the parties, having happily adjusted the difficulties out of which this case originated, are now desirous that no further proceedings should be had in the cause: It is therefore ordered, with the full assent and concurrence of both sides, and at their solicitation, that the trustees under the marriage settlement of the complainant and his wife have leave to sell and dispose of so much of the trust property as may be sufficient to satisfy and pay all the costs and counsel fees, on both sides ; and that upon their so paying the costs and counsel fees as aforesaid, the trustees be released from accounting before the master as heretofore directed and adjudged by the Court.” In compliance with this order the trustees sold out stock belonging to the trust estate to the amount of about thirteen hundred dollars, which was paid into the hands of the master and by him disbursed. The evidence of Mr. Simons accompanies this decree. He stated the objects of the parties; that the order of July, 1848, was regarded by all as an end of the litigation; that the parties lived together, as he believed, until the Spring of 1850, when they again separated.

As between A. B. O’Bannon and his wife, the effect of this seems to have been, and was intended to be, a discharge to the trustees for their transactions since 1842, or rather their conduct in accounting with Mrs. O’Bannon from that time thereby *223received the sanction and approbation of her husband. A. B. O’Bannon and his wife were then living together, or about to live together, and thenceforward the trustees would pay over to him the annual income, &c., as provided by the settlement, and as they had done until the separation in 1842. It would be received by him, to be applied “ to their mutual benefit and support, but not to be in any manner subject to the debts, contracts or engagements of the said A. B. O’Bannon.” On the part of Mrs. O’Bannon, the order of July, 1848, and her return to reside with her husband had the effect of what is called, in Doctor’s Commons, *condonation.*Any past causes of complaint were forgiven, and were, to all legal intents and purposes, as though they had not been.

In March following, A. B. O’Bannon having to encounter difficulties of a different character, made the assignment under which these proceedings are instituted. On the 13th July, 1850, an order was entered in this cause, at the instance of the defendants, or some of them, and with the consent of the plaintiff’s solicitor, that Mrs. O’Bannon should have leave at any time within thirty days thereafter, to file such cross bill in this cause as she may be advised to do. It does not' appear that any further proceedings were had under this order.

The plaintiff does not seek to impeach the settlement of 1829, nor does it seem open to attack. It was, for the most part, an ante-nuptial settlement of the intended wife’s real estate, and was duly recorded. In reference to the premises at the corner of Market and King streets, the estate vested in the trustees for the purposes declared in the deed. It is hardly necessary to say that if, in the course of years, the premises had quintupled in value it would have no effect. Nor if, in the same space of time the buildings on the premises had been thrice consumed by fire while under insurance, would - it be doubted that the amount of the insurance would be so much capital in the hands of the trustees. But after all the various uses of the settlement had been fully declared, a power was *224given to the trustees to sell and re-invest. And here it is worthy of remark, that they were authorized to sell only “upon receiving from the said Henrietta Portner a written request so to do, which request shall be signed by the said Henrietta in the presence of two or more credible witnesses.” After providing for the immediate re-investment of the sales in other property to be held subject to the same uses, it is added “ with the exception, however, that, should the aforesaid house and lot be so sold, the sum of five thousand dollars only shall be in trust to and for the same uses and purposes as those already expressed, the balance of the purchase money for said house, after deducting the said sum of five thousand dollars, if any balance there be, shall be for the use and benefit of the said A. B. O’Bannon and Henrietta Portner Schmidt, his intended wife, free and absolutely discharged of and from any other or further trust.” When it is borne in mind that this was the inheritance of the lady which the settlement was intended to secure, and that it had been effectually accomplished by the formal provisions of the deed, it is manifest that an exception of this character should be strictly interpreted. The question could never arise but in the event of *a sale. That*was only provided for *hypothetically;*and then was incumbered with provisions and restrictions to be controlled by the wife. The language of the exception, loose as it is, evidently contemplates, substantially, a re-investment of the purchase money, and regards a surplus as problematic, and, in any event, inconsiderable. Neither A. B. O’Bannon, nor any one claiming as as-signee, can, however, have any equity beyond the terms of the exception. The premises were sold to Nathan Hart. The purchase money was seven thousand dollars. Of this sum the amount of five thousand dollars is properly held subject to the uses previously declared, and the residue was for the use and benefit of the husband and wife, free and discharged from all other and further trust.

On the part of the plaintiff it is insisted that as assignee of *225A. B. O’Bannon, the trustees should account to him for this surplus, while on behalf of the wife it is urged that, as this is the proceeds of her inheritance, and as it is declared to he for the use and benefit of her husband and herself, she is entitled • as against the assignee of her husband, to an equitable settlement of, at least, a portion of this surplus to her sole and separate use. The trustees acknowledged that they received the proceeds of the sale to Nathan Hart, and that they have held it subject to the uses of the settlement. In the judgment of the court the trustees would have been authorized to pay the surplus to A. B. O’Bannon and his wife, and they were bound to do so if required. But no demand was ever made, unless the suit instituted by O’Bannon, and afterwards abandoned, can be so regarded. But A. B. O’Bannon and his wife united in procuring the order of July, 1848, by which the sum of thirteen hundred dollars was appropriated to defray the expenses of the litigation between them. Such orders are always regarded as the act of the parties. In accounting for the surplus of two thousand dollars, the trustees should deduct the value of the stock sold out to meet the order of July, 1848. *One moiety of the*balance, *with interest from the date of filing*the bill, 8 August, 1849, *must be paid*by the *trustees to the plaintiff as assignee of A. B. O’Bannon.*In all questions of this kind between the wife and the assignee of the husband, it is the practice of the Court to inquire whether an adequate settlement has already been made. It has been remarked that in the settlement of April, 1829, only the property of the wife was included, and nearly the whole was real estate which she had inherited. The income was to be paid to the husband for the mutual benefit and support of himself and his wife during their joint lives. The husband has become a bankrupt. In the *anonymous*case, 4 Eq. R., 94, where the bill was by the wife for alimony, to which the Court did not think her entitled, yet, as the husband and wife were, in fact, living apart, and it was necessary that she should be maintained, the Court *226directed one-half the income of the property which had been settled to the joint use of the husband and wife, to be paid to her. From analogy to the principle of this case the Court is of opinion, that in addition to the payment hereinbefore directed, the trustees should account to the plaintiff as assignee for one moiety of the annual income of the trust estate since the date of the assignment, and during the joint lives of A.. B. O’Bannon and wife, or until otherwise ordered, and that the other moiety of the income, together with one moiety of the surplus aforesaid, be paid to the said Henrietta P. O’Bannon to her sole and separate use; and it is so ordered and decreed.

It is further ordered and decreed that the trustees file a schedule of the trust estate, and that they account for the income since the date of the assignment upon the principles hereinbefore declared. And that they also account for the surplus of the sale to Nathan Hart, over and above the sum of five thousand dollars, in the manner heretofore directed, and that the master state the accounts.

It is further ordered and decreed that the plaintiff account for his transactions as assignee, and that the master take an account of the same, as also of the debts due by the defendant, A. B. O’Bannon, which are entitled to payment under the Insolvent Debtors’ Act, out of the assigned fund, and that the master report on the same, with leave to report any special matter.

It is finally ordered and decreed that either party may have leave to apply at the foot of this decree, for such further order as may be necessary to carry the same into effect, or as circumstances may from time to time seem to require.

Each party to pay their own costs, those of the plaintiff to be chargeable .on the assigned fund, and those of the trustees on the income of the trust estate.

The defendants, the trustees of Mr. and Mrs. O’Bannon, and Mrs. O’Bannon, appealed from the decree of his Honor, Ohan-*227cellor Dunkin, and prayed that the same may he reversed, and the complainant’s hill dismissed, upon the following grounds :

1. Because it is respectfully submitted, that the order or decree of the 6 July, 1848, was a final adjudication and settlement hy this honorable Court of all points in controversy between the parties, and against all the claims made by the then complainant, Augustus B. O’Bannon, either upon the capital or income of the property settled by the marriage settlement of 1829.

2. Because the said decree of 1848, viewed as a settlement of all the controversies between the parties, with their assent, and under the sanction of this honorable Court, operated as a judicial settlement of all the surplus of the sale of the lot at the corner of King and Market streets over and above the sum of five thousand dollars and the costs and fees in the said causes, which costs and fees having been paid, and the said decree fully satisfied, the said trustees held the said surplus thenceforward as part of the settled property subject to the provisions of the said marriage settlement for the joint support of husband and wife, without liability for the husband’s debts.

8. Because the complainant in the present case being only the assignee of the rights of A. B. O’Bannon, whatever these might be, cannot claim more than he could, and is therefore not entitled to have or demand the aforesaid surplus or any account thereof.

4. That the order for leave to file a cross bill for Mrs. O’Bannon was not compulsory on her, but only permissive, and it is submitted that, she has not waived her equity for a further settlement by not filing such bill, but that this Court should of its own motion take notice of her equity to have a further *228settlement, even if tine decree of 1848 does not operate as such settlement. -

5. That even if the said A. B. O’Bannon might be let into the participation of the profits of the settled property since 1848, yet by the express terms of the settlement the same could only be received and enjoyed by him jointly with his wife for their mutual support, without being in any manner subject to his debts, contracts or engagements, and the complainant claiming only as assignee under the Insolvent Debtor’s Act, and-for the satisfaction of O’Bannon’s debts, can have np account of the profits and income of the settled property against the express provisions of the said settlement.

6. That even if O’Bannon’s share of any portion of the income of the settled estate under other circumstances would have been liable to his creditors, and the assignee entitled to such share, this must nevertheless.be subject to the superior equity of the wife to have a further settlement under the circumstances of her abandonment by her husband, and it is respectfully submitted that the Court should have sent it to the Master to inquire and report whether it were proper and necessary to have a further settlement, and if so, then whether of the whole, or of what part.

7. That as all the settled property was the estate and inheritance of the wife, and brought into the marriage by her, and the same is not more than sufficient for a mere support of her alone, and the husband has abandoned her, and does not contribute to her support, it is submitted that the whole property should be settled to her sole and separate use, and the whole income paid to her.

*McOrady, James Simons,*for appellants.

*Northrop,*contra.

*229Per CuRiAM.

This Court concurs in the .decree, -which is hereby affirmed, and the appeal dismissed: '«and it is so ordered.

Johnston, Dunkin, DaRGAN and Wardlaw, CC., concurring.

*Decree affirmed.*