#### William W. Ancrum and Wife, v. John H. Dawson, et. al.

A female infant may bind herself by a marriage settlement of her own property, entered into with the consent of her father.

A bond executed by the husband to trustees previous to his marriage, and duly recorded as a marriage settlement, covenanting whenever called upon to settle certain property, which was given by the will of his intended wife’s father, who was then alive and consenting to the arrangement, — is not binding as a marriage settlement upon the wife who was an adult at the time of its execution, and who did not know of, or after-wards accept or enjoy the provision intended to be secured by it. And it was held, that on the death of the husband who had taken the property into possession, without having made a settlement in pursuance of the articles, that the wife took the property under the provisions of her father’s will, and not subject to the trusts of the settlement.

*Befwe his Honor Chancellor HARPER, at Charleston, June Term,*1837.

The material facts in this case are embodied in the following decree: • .

Arnoldus Vanderhorst, by his will dated in 1810, devised to his three daughters, Harriet Hony, Maria Simmons and Jane Van-*146derhorst, certain lots and tenements in the city of Charleston, and also the residue of his estate. The devise was expressed to them, their heirs, executors and administrators forever; but there was a limitation to the survivors in the event of either dying leaving no issue living at her death, or the issue dying under the age of twenty-one, and a further limitation if all should die, leaving no issue living. Afterwards and during the life time of the testator, his daughter Jane Vanderhorst, married Lawrence M. Dawson. In contemplation of the marriage, the intended husband executed a bond to Elias Horry, John Stanyarne Vanderhorst, and Elias Van-derhorst, in the penalty of $50,000, in which it was recited that Arnoldus Vanderhorst, by his will already executed, had devised certain real and personal property to his daughter Jane Vander-horst; and the condition was that the said Lawrence M. Dawson, when called upon or required by the said Elias Horry, John Stan-yarne Vanderhorst, and Elias Vanderhorst, should convey to them all the property or estate to which tho said Jane Vanderhorst should be entitled under her father’s will “in trust to and for the uso and behoof of the said Lawrence Monk Dawson, and Jane Vanderhorst, during their lives, and also in such manner as that the said property, both real and personal, shall be made over and settled on, and secured to the said Jane Vanderhorst, and the heirs of her body,” &c.

The bond also recited that the settlement was made at the express wish and desire of the said Arnoldus Vanderhorst; but there was no proof of this, nor that he knew of its execution; except that a witness, Dr. Simmons, also a son-in-law of Arnoldus Vander-horst, stated that tho contents of the will were not known in the family, and that the knowledge of the contents evidenced by the recital of the bond must, in all probability, have been derived from the testator himself. The circumstances however, render the fact intrinsically probable, that he did know of the bond, and that it was executed at his instance.

The intended wife was no party to the bond, nor was there any proof whatever that she assented to it, or ever knew of its existence. The testator died without altering or revoking his will. His estate was divided, and certain houses and lots which are in *147question in this suit and certain slaves, were allotted to Mrs. Jane Dawson. Lawrence M. Dawson made no settlement in pursuance of his bond, nor was he ever required to do so by the trustees, of whom two are dead, and the third has never acted or interfered. Lawrence M. Dawson died on the 3d day of October, 1823, intestate,, and the defendant, John H. Dawson, administered on his estate. His widow, Mrs. Jane Dawson, sickened and was confined to bed on the day after her husband’s death. From this sickness she never recovered, but died on the 5th December of the same year, having first made her will, by which she bequeathed all her estate, real and personal, to the executors, in trust to apply the issue and profits to the maintenance and education of her children ’till the youngest should attain the age of twenty-one years; and, if there should not be sufficient, then to apply such portion of the principal as might be required; and she gives her executors full power and authority to sell, mortgage, or dispose of any part of her estate, real or personal, “and the proceeds thereof to reinvest and the same again to sell, mortgage, and dispose of, as often and in such way as may be thought proper,” and when the youngest of her children should attain to the age of twenty-one years, then in trust to divide her estate amongst them. There are further limitations in the event of her children dying without issue. The children of Lawrence M. and Jane Dawson, surviving both parents, are the complainants, Mrs. Harriet Ancruna and John L. Dawson, and the defendants, Arnoldus Y. Dawson, and Theodore D. Dawson. In making an inventory of the estate 'of Lawrence 'M. Dawson, tlio slaves which were allotted to Mrs. Dawson, as her portion of her father’s estate, were not included by the administrator. They were inventoried, however, by the executors, John H. and Lawrence E. Dawson, (who alone qualified) as part of the estate of Mrs. Jane Dawson. The negroes supposed to be of the estate of Mrs. Jane Dawson, were sold for the amount of $8085, of wdiich, much the greater part were purchased by the defendant, John H. Dawson. The sale was made by the order of this Court, on the petition of John H. Dawson, Lawrence E. Dawson, and Charlotte H. Dawson, as guardians of the children of Mrs. Jane Dawson; by her will Mrs. Dawson had appointed her executors the *148guardians of her children. But by a paper subsequently executed, she appointed. Charlotte H. Dawson, the guardian other daughter, and John H. Dawson and Lawrence E. Dawson,the guardians of her sons. Being advised, I suppose, that the appointment of the mother conveyed no authority, L. E. Dawson was appointed guardian by the- court, and gave bond with J. H. Dawson, as surety.

He admits that he is in possession of the proceeds of the sale of the slaves, whether in cash, or bonds, and that he received possession as the guardian of the children, supposing that under the will of the grandfather, their mother took only a life estate, with remainder to them as purchasers.

During the course of the year 1835, the executors sold or contracted to sell various portions of the real estate of Mrs. Dawson to different persons who are made parties to the bill; but it is not thought necessary to consider their cases separately.

The defendant, Lawrence E. Dawson, admits that he is.in possession of the funds arising from the sales.

The principal object of the bill is to set up and carry into effect the bond of Lawrence M. Dawson, before mentioned, as marriage articles. And it is agreed, that if a settlement had been ordered by the court, in pursuance of such articles, it would have been by directing the property to be conveyed to the use of the husband and wife for life, to the survivor for life, with remainder to the issue of the marriage as purchasers.

Complainants charge that the purchasers of the real estate purchased with notice, and that they are entitled to have the property in specie, and pray that it may be conveyed to. them in pursuance of the supposed articles. There can be *no doubt but that*the will of Arnoldus Vanderhorst, would give his daughters an estate in fee. The. devise is to them “their heirs, executors and administrators forever.” The limitation over is on the event of their “leaving no issue living at their decease.” There cambe no doubt, but that tlio law allows tho. fee to be given, with limitation over on any event within a life or lives in being, or within twenty-one years afterwards, and the time at which this limitation over is to take effect, is expressed too clearly to admit of doubt. It comes within the principle of the cases of Pells and Brown, and Gulliver v. *149Wicket, (1 Wils. .105.) It is not exposed to the doubt which has been expressed with respect to the case of Porter v. Bradley, (3 T, R. 143,) and seems to be almost identical with that of Baren-field v. Witton, (2 Bos. and Pull, 324,) in which there was a devise to one, her heirs and assigns, with a limitation over in the event of her not leaving issue at her death. Then there can be'no doubt but that Mrs. Dawson took the legal estate in fee. But it is contended that in equity she is bound by the condition of the boDd, and must bo restricted to a life estate, with remainder to the children as purchasers. She is no party to the bond, and in general, no one but a party to a contract can be bound by it. The statute of frauds is express that every contract in consideration of •marriage shall be signed by the party to be charged by it. It is true, as it is said by the Chancellor in Archer v. Pope, (2 Y. 535,) that “notwithstanding the words in the statute of frauds, if there is a marriage agreement by which one party only is bound or signs, if the other parties act under that, and submit an assent, they shall be bound by it.” And he proceeds to put several cases in which the wife knowing of such settlement, and accepting and enjoying the provision secured by it, shall not afterwards be permitted to repudiate it. It is charged by the bill that in pursuance of these articles, Mrs. Dawson did take possession of these slaves, to which she would have no title but for the articles, and therefore, accepted a benefit secured to her by them. But there is no evidence to sustain this. She lived but a short time after her husband; during that time she was ill, and according to the testimony, did not interfere with the business of the estate.

These slaves were kept on the plantation indiscriminately with ■those of her husband’s estate, and her will does not sjjecify any particular slave or real estate.

As I have said, there is no evidence that she ever knew of the existence of the bond; but there is evidence to raise the contrary probability. The witness, Samuel Gr. Barker,‘who drew her will, and who states that he lived in the house with her during her last illness, and conversed much, and intimately with her respecting her property and business, and who was appointed one of her executors, states that in her various conversations, she never men*150tioned or alluded to this bond, as it is probable she would have done, if she had made any claim under it when malting a final arrangement of her affairs. It is true, that her executors took possession of these slaves as part of her estate. But they positively deny that this was done in pursuance of the bond, or that they then knew of its existence.

They state that they did so, because they were under the impression that the effect of the will of Arnoldus Vanderhorst, was to give his daughters a life estate, with rbmainder to their issue.

This does not account for their including them in the inventory of the estate; but they are sustained substantially in the fact, by the testimony of Dr. Simmons and Mr. Barker. The former says it was the impression in the family that the property was *entailed,*so that the first takers could not dispose of it.

Tie was under the impression that he could not dispose of his wife’s property. The latter states that from his conversations with Mrs. Dawson, he thinks she was under the impression that her father’s will settled the property on his daughters, independently of their husband’s, and that the husbands were dissatisfied on this account. It is probable, then, that if she had been questioned on the subject, she would have claimed the slaves as her separate property. But if this were under a mistaken impression of her rights under the will, it could not be regarded as a submission and assent to the settlement. Then it was argued that the father must be regarded as a party to the bond, and that his act bound her. He did not sign the bond, nor do I perceive how he can be said to have done any act, or receive any benefit under it. But suppose him a party, how could that bind her1? It is said, in the case of Seamer v. Bingham, referred to (3 Atk. 56,) that tliero are cases in which the father contracting on behalf of an *infant*child shall bind the child. And this is a question that has been much discussed; as in Harvey v. Ashley, (3 Atk. 607,) and Fraser v. Lester, decided at the last sitting of this court. It has been held in several cases, that an infant, party to a marriage settlement, may bind herself with the consent of her father. But this of course, has no application when the party is an adult capable of acting for herself. It is charged by the bill that Mrs. Dawson was an adult *151at the time of her marriage, and this is not denied though not admitted by the answer. I cannot presume that she was an infant. Resides the doctrine has no application. When it is said, that a female infant may hind herself with the assent of her father, it is meant that she may do so with respect to her own property. This was the father’s property, which it was absolutely in his power to settle, limit and dispose of as he should think proper. If this bond could have the effect of altering after his death the disposition which would otherwise be made by his will, it is a testamentary paper, and, as was urged in argument, void under the statute of frauds, at least as to the real estate, as well for the want of witnesses as of signing. It may be said, that if there was a misconception as to the effect of the will, this would not prevent the martial rights of the husband from attaching on the slaves.

This point I do not consider as being now in issue, and I shall conclude nothing upon it. The defendants may contend that Lawrence M.Dawson assented thathis wife might hold them as her separate property, or he might be bound by the bond, though she was not. It would he immaterial to the interest of the parties, whether they took the slaves as the distributees of their father, oí-as purchasers under the bond, or as the legatees of their mother, except that if the property be regarded as Mrs. Dawson’s estate, the executors are to hold it in trust until the youngest of the legatees attain the age of twenty-one, and they might otherwise be entitled to present distribution. The point may be made perhaps on a reference. I suppose that Arnoldus V. Dawson, and Theodore D. Dawson, mentioned in the bill, are infants. They are called infant defendants; though this was not shewn, nor does it appear that they are parties to this suit. No answer was read on their behalf and the bill could not be taken *pro confesso*as against them. The bill prays an account of the estate of Mrs. Dawson, and of any property which may have come into the hands of the executors by virtue of the bond. To this they are entitled if they desiré it. No application or suggestion for a reference was made at the hearing. The principal object of the suit seemed to be the real estate. The defendant, Lawrence E. Dawson, refers to his accounts filed with the master, and both rely on settlements *152made with the complainants. But nothing of this was shewn té the court. The complainants may have a reference if they think proper. There seemed to be other objects in view, which it was difficult to apprehend from the bill or the argument. It was urged sis if for tho purpose of impugning that purchase, that John H. Dawson was a trustee, purchasing at his own sale. But this is ho part of the case made by the bill. Nothing is alleged of the invalidity of the sale, not even that John H. Dawson was the purchaser.

I do not consider the matter in issue, and shall conclude nothing upon it.

If the complainants desire to impugn the sale on that or any other ground, I leave them to proceed as they may be advised. This was, perhaps, urged only as an argument in support of a suggestion that the executors should be ordered to bring into court the funds in their hands. But for this I see no sufficient grounds. The estate of Mrs. Dawson, is to be managed in trust till the youngest child shall attain the age of twenty-one. If the executor or trustee mismanaged the estate, the course was to apply for the appointment of a receiver or a change of trustees. This is not claimed by the bill. But I do not perceive any such misconduct on the part of the executors as would justify such an order.

John H. Dawson, may have purchased for the benefit of the estate. He seems to have paid higher prices than any one else. Nor do I perceive any other act which may not have been done in good faith.

As I have said the bill may be retained for the purpose of au account; but as against the purchasers of the real estate from the executors, it must be dismissed.

And it is ordered and decreed accordingly.

The complainants appealed on the following grounds:

1st. Because the evidence is strongly in favor of the allegation of the bill, that Jane Vanderhorst, was privy to the execution of the bond, and claimed the benefit of it. That she was not only entitled to the benefit of it, but that (the children being purchasa-sers under the grandfather who might have altered his will, if she had refused the settlement,) she was bound to abide by it.

*1532d. That whatever doubt there might be as to the other purchasers, Lloyd is not entitled to a conveyance on a contract made *by*the trustee, without the consent, and against the interest of the *cestui que trust.*

*Petigru Sf Lesesne,*for complainants.

*Mazyclc,*contra.

Johnson, Ch.

We concur in the judgment pronounced in the Circuit Court. There is no question that Jane Dawson took under the will of her father, Arnoldus Vanderhorst, a fee simple in the real estates devised (now the only subject in controversy) with a limitation over, on her dying without leaving issue living; and that having survived her husband and leaving issue, she had the right to dispose of it by will. It follows therefore, that the sale of her executors, under the authority of her will, would be binding on her heirs.

But the allegation on the part of the complainant is, that there is an implied covenant on the part of Jane Dawson, arising out of the bond executed by her intended husband, Lawrence M. Dawson, to trustees in contemplation of their marriage, that the property to which she might become entitled under the will of her father, should be conveyed and settled to their joint use for life, then to the said Jane for life, and after her death, to the heirs of her body, &c; and it is insisted that under this covenant, her children are entitled to take as purchasers, and therefore the sale by her executors was void.

Jane is not, however, a party to this bond; and the conclusion of the Circuit Court is, that there is no evidence to shew that she ever acquiesced in it, or knew of its existence or contents. This conclusion is entirely satisfactory to the Court, and it would be a Waste of words to attempt to demonstrate that one who is not a party to a contract is not bound by it. The attempt to sustain it on the ground that her father knew of, and consented to the provisions of the bond, even assuming that the fact was clearly and fully proved, is equally unavailing. Jane was of full age at the time, and no authority or example will be found to support the position that *154one competent to contract, is bound by a contract made by another in his behalf, without his authority.

If Jane had been under age at the time, the case, I suppose, for the reasons which I have urged in Fraser v. Lester, (Charleston, M. S.) would have been otherwise; but there is no analogy between the cases. The legal incapacity of an infant to make a valid contract and the necessity for protecting her interest, are the foundations of the argument in support of the authority of the father to bind her by a marriage contract, and do not apply to the case of an adult. The appeal is dismissed.