#### *Eliza T. Peay vs. Nicholas A. Peay et al.*

T. in consideration of twenty thousand dollars, paid by A. P., conveyed to R. C., in fee, a tract of land, *“*in trust for the use of said A. P., his heirs and assigns forever, and to permit the said A. P. to have and possess the same, and to enjoy the profits theroof, and in trust to convey the same to such person or persons as the said A. P.' shall, by deed or will, or other writing under his hand, direct and appoint.” ' *Held,*that A. P. took, under the statute of uses, at least a qualified-or determinable fee in the land, and, never having exercised the power of appointment, that his widow was entitled to dower in the premises.

*Before*Durkin, Cii. *at*Richland,

*June,*1844.

The complainant and Austin F. Peay, deceased, were married in Dec. 1818, and this bill was filed to recover dower.

So much of the decree of the circuit' court as relates to the question decided by the Court of Appeals, is as follows :

*The Chancellor.*In July, 1840, Thomas Taylor, in consideration of twenty thousand dollars, paid by Austin F. Peay, conveyed to Roland Cornelius, in fee, a plantation containing eighteen hundred and twenty-four acres, situate on the Congaree in Richland district, “ in trust for the use of said Austin F. Peay, his heirs and assigns forever, and to permit the said Austin F. Peay to have and possess the same, and to enjoy the profits thereof, and in trust to convey the same to such person or persons as the said Austin F. Peay shall, *by*deed or will, or other writing under his hand, direct and appoint.” It was objected to this as well as some other deeds hereafter to be noticed, that they were manifestly made for the purpose of preventing the right of dower, and were in fraud of those rights. No authority or precedent was adduced for impeaching a deed' of this character on such ground. It has been said, that a deed executed by the, husband on the eve of his marriage, for this purpose, would be deemed fraudulent. But the propriety of this *dictum*may be well questioned. It is not like a deed privately executed by the wife under such circumstances. The husband becomes respon-*410pible for all the existing, as well as future debts of his wife, and may be supposed to contract with some reference to the estate which he is to receive. But Lord Hardwicke is said to treat it as •“ clear, that if a man before marriage conveys his estate privately, without the knowledge of his wife, to trustees, in trust for himself and his heirs, in fee, that will prevent dower.” (2 Rop. on Hush, and Wife, 354, note ; Co. Litt. 216, n.) But these deeds were not made in contemplation of marriage. The husband had never been seized. No right of dower had attached. The money belonged to the husband, without any claim, actual or contingent, on the part of the complainant. She had no authority to control the mode in which it should be invested ; and no right whatever could be created, until a legal seisin of the husband in the real estate purchased. It becomes, then, necessary to inquire what is the legal eifect of the deed of July, 1840. One of the grievances enumerated in the preamble to the statute of uses was, that uses fraudulently deprived widows of their dower, because the widow could be endowed of that estate only whereof her husband was legally seized. The statute was intended to remedy the evil, by transferring the possession to the use. The only question was, whether the use was executed in the testator. And on the part of the defendants, it was insisted, that as, by the terms of the deed, the trustee was to convey the premises to such person or persons as the said Austin F. Peay should appoint, the fee must remain in the trustee for that purpose. But in *Maundrell vs.*Maundrell, (10 Yes. 264,) Lord Eldon says, “ The law is, that where there is a power to A to appoint, and till he makes an appointment, or, for want of an appointment, to him and his heirs; the fee, in the meantime, is vested in him, as that qualified fee which is to yield the estate which may arise out of the execution of the power; and this law,” he says, “is established upon *Leonard Lovie’s case,*10 Rep. 78, and all the authorities downwards.” In Mr. Butler's note (119, to Co. Litt. 216) it is said, “ if a person limits the estate to such uses as he shall appoint, and in the meantime, and until he makes the appointment, to the use of himself and his heirs, or if he limits it to the use of himself for life, and after his decease, to such uses as he shall appoint, and for want of appointment, to the use of his right heirs ; in both these cases, the settlor and his heirs have a qualified and determinable fee, until by an exercise of the power of appointment an use vests in the person to whom it is appointed — or till by the death of *411the settlor without exercising his power, the execution of it becomes impossible. To this fee dower is clearly incident. If the settlor makes an appointment, a new use springs up, and vests in the appointee; and the fee originally limited to the set-tlor ceases, and with it the right of the wife to her dower out of it.” But if no appointment is made, the fee, from being qualified and determinable, becomes simple and absolute. (See also, Sug. on Powers.) It is remarked in the- books, that this mode of conveyancing was frequently resorted to, in order to place it in the power of the husband to defeat the claim of dower. It appears to the court that the deed of July, 1840, falls within the principle. By operation of the statute of uses, the qualified fee was in Austin F. Peay and his heirs, until the power of appointment was executed. He died without having executed the power (his will having been executed in 1834) and the fee became absolute and simple. The complainant is, therefore, entitled to dower in the premises.

Note. This case was decided in May, 1845, and was ordered to be reported, but was overlooked by the Reporter when preparing the cases of that term.-

The defendants appealed.

*Preston and W. F. DeSaussure*fof the defendants.

*Bailey and Tradewell*contra.

Curia, *-per*Dunkin, Ch.

This court is satisfied with the' view taken by the Chancellor, and the appeal is dismissed.

Johnson, Harper and Johnston, CC. concurred.