#### V. M. Converse, by next Friend, *vs.*A. L. Converse.

A wife having a general power of appointment over her separate estate, may dispose of it to her husband, or for his use, subject to proof of fraud or undue influence on his part; and, as such a transaction is regarded with jealousy and suspicion, it will be set aside upon slighter proofs of fraud or undue influence than is required toin validate ordinary deeds. It is not, however, essential to the validity of such an appointment, that it should spring from the suggestions of the wife’s own mind. The persuasions and importunities of the husband, unaccompanied by commands or threats, are insufficient of themselves to invalidate it; and it is a circumstance favorable to the instrument that its dispositions are reasonable.

The execution of such a power if valid at the time cannot be set aside because of the after misconduct of the husband toward the wife, no matter how gross and outrageous it may be.

Though the Court has power under the Act of 1814, (5 Stat. 718;) to change the name of a wife against the wishes of her husband, where her true interest will thereby be promoted ; it will reject an application for such a change where she and her husband are separated, and to grant it would seem to close the door to recollection.

Alimony is never allowed where the wife has a separate estate sufficient for her subsistence in comfort.

A decree ordering a settlement of the wife’s estate and declaring the trusts, is judicial, final and irrevocable ; it is not an administrative order which may be revoked or modified by the Court before a conveyance to the trustee has been executed.

The Court may by its decree protect a wife in living apart from her husband.

BEFOSE D ARCAN, CH., AT STJMTER, JANUARY, 1856.

Tbe circuit decree and tbe opinions delivered in tbe Court of Errors and Court of Appeals in Equity explain themselves, and render any further statement of the case unnecessary. Tbe circuit decree is as follows :

*536Dargah, Oh. Tbe plaintiff bas sustained every material allegation of ber bill, at least all sucb as were deemed material by ber, and on wbicb sbe relied for support of ber prayer for relief. Her statement as to tbe situation of tbe property (tbe subject matter of tbis contention) is precisely accurate. Tbe various instruments, deeds, will, judicial proceedings, orders and decrees, by wbicb tbe rights of tbe parties bave been created or affected, bave been recited in tbe bill in a manner strictly conformable witb tbe truth. As to these matters of fact, there is no discrepancy between tbe allegations of tbe bill and tbe statements of the answer. They .only differ as to tbe legal effects and consequences growing '•'ouj: of an admitted state of facts. Tbe plaintiff’s allegations -that tbe defendant bad treated ber witb unkindness and cruelty are fully sustained. His conduct towards ber was characterized by annoyance, insult and personal outrage. It amounts to what is meant by tbe term *scBvitia*in tbe civil law. *******«*(a) Tbe introduction of tbis topic was altogether unnecessary and gratuitous. His grievances in tbis respect rest upon bis own unsupported assertion. He could not bave expected to substantiate them by proof. If they bad been so proved, I do not perceive bow sucb facts could bave affected tbe judgment of the Court. * * * * * * *

Tbe bill, answer, and evidence reveal a most deplorable state of discord in tbe unhappy family of wbicb tbe defendant is, or was tbe bead. I am constrained to say that I think tbe fault lies for tbe most part at tbe defendant’s door. I do not mean to say, for I do not believe, that tbe plaintiff bore ber wrongs witb lamb-like patience and meekness. There was certainly at times, on ber part angry recrimination— with ber spirit and pride it was perhaps impossible for ber *537to bave so demeaned berself. But I cannot shut my eyes to facts, wbicb appear in tbe pleadings, as well' as tbe evidence, tbat sbe was complaisant and yielding to tbe defendant in respect to dispositions of tbe property, and tbat sbe made to bim in tbis respect reasonable concessions.

Tbe allegations of tbe bill as to tbe defendant’s personal violence to bis wife, as I bave already intimated, are satisfactorily proved. Mrs. Moore, (tbe plaintiff’s daughter) was tbe principal witness on tbis branch of tbe case. SbegMssd&went tbe ordeal of a four hours’ examination witji ¡^¡eat credit to berself — sbe was calm, dispa|^o|áte^v(san%|L intelligent; and acquitted berself in he^fr|ing£sEuá|;iJm i&' a very handsome manner. I believe wb^tr#be sM& w|® thfe truth. Sbe was strongly corroborated b^ vOfber^witnS^ea; particularly by Mr. J. Dyson. ¡j¡ '"N..,

From tbe evidence, tbe conduct of tbe a^^dW^’ftf^nrds bis wife, exhibits a series of petty annoyances and persecutions, committed, I must suppose, with tbe view of coercing her compliance with bis wishes. I will not go into tbe details, but refer to tbe evidence. It is sufficient for me to say here tbat be frequently spoke to her, and in her presence, in tbe most disparaging terms, of her nearest relations. Tbis is not denied but rather admitted in tbe answer. His language to her was insulting and abusive; bis conduct violent and overbearing to both berself and her daughters. On one occasion be struck bis wife in tbe face and pushed down both of tbe girls with violence upon tbe floor. For this there was no other provocation than their attempt to get possession of a trunk of clothes belonging to tbe youngest daughter, who was going to Charleston to be put at school; wbicb trunk tbe defendant unjustifiably withheld. Thus, as might bave been expected, affairs went on from bad to worse, until tbe final consummation and rupture on tbe night of tbe 18th of January, 1854. It is worth while to look to bis answer, for tbe cause wbicb be assigns for these *538outrages. ******** He held ber by the hair of her head in a constrained and painful position on the damp floor of the piazza, exposed to the chilly atmosphere, for the greater part of the night, when her daughter, with the view of releasing her from his unrelenting grasp, attempted with a pair of scissors to cut off her mother’s hair, he threatened her so violently, as to frighten her into desisting from her purpose. When that same daughter seeing her mother suffering under that dreadful torture, lying on the damp floor, exposed to a chilly atmosphere, got a shawl and threw it over her mother’s shoulders, the defendant took the shawl from her, and covered himself with it. Not long before the dawn of day both parties from mere' physical exhaustion agreed upon an armistice. He proposed to release his hold upon her hair, if she would go back to his room. To this, worn out with pain and suffering, she assented. They went back to their room and the witness went to hers. Before the lapse of many minutes hostilities were renewed in the bed-room. The witness, summoned by a servant, went to the door and found it locked. She could not gain admittance, but heard loud and angry talking on his part. It was then and there that he inflicted * violence on her person. ****** It was from that room that by a back door she made her escape and fled from his presence, bleeding, lacerated and bruised. Her lip was cut, and still bleeding on the next day, when Mr. Dyson saw her. There was a contusion on or under her eye from a blow, witnessed by Mrs. Moore, before the enactment of the hair-pulling scene. And her arm was bruised, and black and blue from the wrist to above the elbow — when seen by Mr. Dyson on the next day. On the ensuing day the plaintiff and her daughter were trembling fugitives from the house. They sought shelter, and a hiding place in a cotton house, where they obtained their food by stealth; while the defendant * * * * went out to take * * * *539a carriage drive. On bis return, having searched and discovered their hiding place, he sent a servant for a hammer and nails to nail them up. Having intimation of this intention from a servant, they made their escape before the hammer and nails were brought. It was about dusk. They ran for a quarter of a mile, and from exhaustion stopped in an old field, exposed to a shower of rain, by which they were drenched to the skin. There, while standing for shelter under some trees, they saw the carriage of Mr. Hayne (a neighbor) that had been sent for them. They got into the carriage and went to Mr. Hayne’s house. Since this time, the plaintiff and defendant have been separated. All this violence and outrage were perpetrated without adequate or palliative cause; and in fact for no cause at all, unless * **********

If this were a bill for alimony, the plaintiff would be entitled to a decree. It is a case in which the wife is morally and legally justifiable in withdrawing herself from the bed and board of her husband. But the Court will not, and cannot make a decree to that effect. The Ecclesiastical Court of England has the power of decreeing a separation, *a mensa et*thoro, but the Court of Equity has no such jurisdiction. A jurisdiction of this kind appertains to no Court in South Carolina. Under the circumstances of this case, the Court might go so far, (if necessary,) as to protect the wife from the cruelty of the husband.

Nor can another proposition of the plaintiff be entertained, namely, to change her name from that of “ Converse” to that of “ De Yeaux,” which is the name of her first husband. The Court undoubtedly possesses the power to change the name of a party who may make such an application for such purpose. If in this mode the name of a husband was changed, that of the wife would also be changed, as a necessary consequence. But an application to change the name of a wife without the concurrence and consent of the husband is *540without a precedent. It seems also to be wrong in principle. How do I know that these parties may not become reconciled ? Reunions more improbable have occurred. It would be wrong in the Court to throw any impediment in the way of such reconciliation in addition to those that already so unhappily exist.

I must now consider the questions that have been made as to the property in which the plaintiff and defendant are interested. There are two estates derived from different sources, and held under different trusts. One of those estates called the “ Ruins” consists of a plantation of about four hundred and forty-eight acres, and about thirty negroes, with stock, &c. It was the share of Mrs. Converse in the estate of her deceased husband, Robert Marion De Yeaux, and of her share of the share of one of his and her children (Robert Marion De Yeaux) who survived his father, and died in early childhood. Before the division of the estate the plaintiff and defendant intermarried. A bill was filed for partition, and there was an order for a settlement of her share upon Mrs. Converse. Terms- were proposed, and the Commissioner reported thereon. This having been confirmed by a decree of the Court, Mr. and Mrs. Converse by a deed bearing date 27th March, 1849, conveyed all the share of Mrs. Converse in said estate to John 0. Singleton, for the sole and separate use of Mrs. Converse during her life, and after her death, to such persons, as she, by any instrument in the nature of a testament, should appoint, and in default of such appointment to her right heirs —with the reservation of a power to Mrs. Converse, by any deed executed by her in the presence of two witnesses, to revoke the uses declared in the deed creating the trust and to convey the said property, or any part thereof, to any person or persons as she saw fit, in the same manner as if she was a feme sole; also to sell said property or any part thereof with the view of changing the investment, and also at her .discretion to remove the trustee, and to substitute another in his *541place. To this estate there also belonged two negroes, Peter and Gabriel, conveyed by Richard Singleton to John 0. Singleton, by a deed dated 9th July, 1849, for the same uses and subject to the same conditions and agreements, as are expressed in the deed of the 27th March, 1849.

Mrs. Converse afterwards exercised the powers reserved, by a deed bearing date 18th September, 1850, executed in proper form: she revoked the uses declared, as well in the marriage settlement deed of 29th March, 1849, as of the deed of Richard Singleton of the 9th July, 1849, and by her said deed of revocation, declared and appointed, that the said John C. Singleton should hold the said property for the joint use of the said A. L. Converse and Y. Marion Converse, during their joint lives, and if the said A. L. Converse should be the survivor for his use, during his life; and if the said Y. M. Converse should be the survivor, the estate was to be held for her use, &c., &c.

By deed bearing date the 5th January, 1852, duly executed, she revoked the appointment of John C. Singleton as trustee, and appointed a substitute, E. M. Anderson, as trustee in his place. Thus the parties stood relatively to this property at the time of their separation in January, 1854. By virtue of the deed of 18th September, 1850, this property has been held since that date, to the joint use of the plaintiff and defendant *as husband and wife. This is equivalent to its being for the use of the husband, as the rents and profits must be paid over to him, and his disbursement thereof cannot be controlled by the wife. After the separation, Mrs. Converse and her children, resided for a time at a place called “ True Blue,” which is an estate that Mrs. Converse had derived under the will of her father, the late Richard Singleton; and of which we will have more to say hereafter. Mr. Converse continued to reside at the “ Ruins.” Soon after the separation, the negroes belonging to this last mentioned estate, (the Ruins,) except a few went to “ True Blue” where they have continued ever *542since. I take it for granted tbey bave been withdrawn by tbe commands and directions of Mrs. Converse — and tbey bave continued to tbe present time in ber possession and under ber control.

I am unable to grant tbe plaintiff tbe relief which she seeks in reference to this estate. Tbe Court cannot restore ber to ber original rights under tbe deed of marriage settlement. It cannot recall ber .own voluntary appointment; or destroy tbe existing vested rights of tbe husband. If a husband maltreats bis wife, inflicts upon ber personal violence, and compels ber to fly from bis presence and to seek that protection and peace elsewhere, which she does not find under bis roof, that does not divest him of any of bis estate legal or equitable. Eor so sore and grievous a calamity, there is in this country but one remedy so far as I know (I mean so far as relates to a claim upon bis estate) and that is a bill for alimony. And that is a claim upon bis estate generally. Where tbe bus-band has an interest in tbe settled estate of bis wife, I see no reason why tbe Court should not charge tbe alimony allowed, upon such interest of tbe husband if it be necessary. But this is not a bill for alimony, and it is useless to prosecute these speculations.

Under tbe circumstances of tbe case, I am disposed to grant tbe plaintiff all tbe relief which I conceive to be within the competency of tbe Court, and which can be extended to ber without tbe violation of important principles and tbe disturbance of vested rights. A state of things now exists, which renders it impossible for Mrs. Converse to enjoy tbe rents and profits of this estate jointly with the defendant. Eor tbe unhappy and deplorable relations between them, I consider him as responsible. *He*has driven *her*from bis bed and board, so that she cannot enjoy the joint use with him. In renouncing bis society, she is compelled to renounce tbe enjoyment of property, in the participation of which, it was ‘evidently intended she should bave a part. Something, I *543think, can. be consistently done to mitigate this state of things. I can separate their interests, soffar as regards the enjoyment of the rents and profits. The deed of revocation and appointment certainly intended that the wife should have some benefit; a benefit in fact to the extent of one-half of the rents and profits of the estate. And as far as the defendant has rendered it impossible for her to enjoy the income of the estate jointly with him, it will be better for both parties, and not inconsistent with the rights of either or with any principles or rules of law or equity, to declare, that the joint interest of the plaintiff and defendant in the income of this estate shall be separated; a moiety to each, to be enjoyed in severalty. And it is so ordered and decreed, and further it is ordered and decreed that this separation of interest relate back to the period of separation. It is further ordered and decreed, that the parties mutually account for the annual value of the property of this estate, which they have had in their possession respectively from the date of their separation, and that each party be entitled to receive one-half of the annual value or income. It is further ordered, that the Commissioner state the accounts between the parties, according to the principles of this decree. And it is further ordered and decreed, that the negroes taken thence be restored to the “Ruins” estate, and that the trustee, E. M. Anderson, do assume the possession, control, and management of said estate; and that hereafter he pay over one-half of the nett annual income of the estate to the defendant, and the other half thereof to the plaintiff, to her sole and separate use. In the course of the discussion something was said about the difficulty of the trustees managing this estate, and the propriety of a sale was suggested. Though it seems to me under existing circumstances, this course would be advisable, yet, as at present advised, I cannot act on this suggestion. But the parties, or either of them, may move for an order of sale at the foot of this decree. If both concur, of course *544there would be no difficulty. If only one make the application, the Court will consider the motion and act judicially in the premises.

I pass on to the consideration of the question, which has been made in reference to the 11 True Blue” plantation. This estate being a large and valuable plantation in St. Matthew’s parish, with two hundred negroes, horses, mules, stock of all kinds, plantation utensils, &c., was devised to Mrs. Converse, under the last will and testament of her father, Richard Singleton. He devised and bequeathed the same to her for life, with remainders not necessary to be mentioned. There, was no trust created by the will. Various questions arose upon the construction of the will of Richard Singleton. A bill was filed by the executors against all the devisees and legatees, and in which every person having an interest was a party, for the adjudication of those questions, for the settlement of the accounts of the executors, and the adjustment of all the rights of the parties. *Inter alia*the aid of the Court was invoked for the settlement upon Mrs. Converse of her share of the estate, and it was stated in the bill, that the executor had purposely withheld his assent to her legacy until the question of the settlement should be decided. He had refused to give her possession, to prevent the marital rights from attaching. There was at that time (and had been) much wrangling and ill-blood between the plaintiff and defendant about the terms of the settlement. Mrs. Converse in her answer, claims that the whole of her interest in the estate should be settled on her, to her sole and separate use. This was opposed by Mr. Converse who insisted upon having some participation in the income and profits of the estate. Thus matters stood, until the June Term of the Court of Equity for Richland District. At the hearing of the cause, the Chancellor ordered, that Mr. Converse should submit proposals to the Commissioner as to the terms of the settlement and that the Commissioner should report thereon. *545Accordingly ontbe 24th June, 1853, Mr. Converse *did*submit proposals. It is unnecessary to refer to Ms proposals further than to notice so much thereof as relates to the “ True Blue” estate. As to this estate, he proposed that three-fourths of the income of said estate should be paid to Mrs, Converse, to her sole and separate use, and that one-fourth thereof should be paid to him in his own right during his life, and after his death Mrs. Converse surviving, the whole income should be paid to her for her use. About this time, this question still pending, by the interposition and kind offices of a mutual friend, Mr. and Mrs. Converse became reconciled, and relations of peace were restored. Mrs. Converse withdrew her opposition to Mr. Converse’s proposals, or at least became acquiescent. By a note addressed to her solicitor — she directed him to offer no opposition to the same. The Commissioner reported favorably on his proposals. The report bears date 1st July, 1853. I quote from the same as follows, *“*I recommend the following terms of settlement— that the real estate in St. Matthew’s parish called “True Blue,” and the two hundred negroes attached thereto, be conveyed to a trustee in trust to permit Marion Yideau Converse to receive annually three-fourths of the profits and issues thereof to her sole and separate use, during the life of Augustus L. Converse, not. subject to his debts, contracts, or control; and to permit the said A. L. Converse during the same period to receive to his own use, the remaining one-fourth part thereof; and upon the death of the said A. L. Converse in trust to permit the said Marion Y. Converse to receive the entire income and profits of “ True Blue,” and the slaves thereunto attached, during her life, and at her death to hold the said land and slaves subject to the further uses declared in relation to the same in the 14th, 15th, 16th, 17th and 19th clauses of the will of the late Richard Singleton.” The Commissioner further reported as to a settlement of other portions of the estate of the said Richard *546Singleton, to which this plaintiff was entitled. This part of the report it is 'unnecessary to consider, as it was not confirmed, and there was no action by the Court upon the same. The Commissioner in the same report recommended “ that Richard Richardson be appointed the trustee of Mrs. Converse upon his entering into bond to the Commissioner of this Court in the penal sum of two hundred and thirty thousand dollars, conditioned for the faithful discharge of the office of trustee.”

No exceptions were taken to the report, and on the 29th November, 1853, it was heard by one of the Chancellors at Chambers, by the mutual appointment and consent of the solicitors of the parties — and on motion of Mr. Moses, solicitor for the defendant, the report, so far as it related to the settlement and the terms of the “ True Blue” estate was confirmed, Mr. De Saussure, the solicitor of Mrs. Converse being present and consenting, — It was ordered, that Richard Richardson be appointed the trustee, on his entering into bond as recommended by the Commissioner with sureties: that thereupon the Commissioner should convey to the said Richardson, “the plantation and land known by the name of ‘ True Blue’ devised under the will of Richard Singleton, and all the negroes, stock, horses, mules, wagons, and farming utensils, and other personal property thereon, which by the will of the said Richard Singleton were bequeathed to the said V. Marion Converse, (formerly De Veaux) for life, to be held by the said Richard Richardson on the following trusts, and for the following uses and purposes, that is to say, to permit the said V. Marion Converse, for and during the coverture of the said V. Marion Converse and the said A. L Converse, to take, receive, possess, hold, and enjoy for her sole and separate use three-fourths of the annual rents, income, issues and profits, not subject to the debts, contracts, or control of the said A. L. Converse, and to permit the said A. L. Converse during the same period, to take, receive, possess, hold and enjoy the *547remaining fourth of tbe annual rents, income, issues, and profits of the said property, and on the death of the said A. L. Converse, the said V. Marion Converse surviving him, to suffer and permit the said V. Marion Converse, to take, receive, possess and enjoy all the annual rents, profits, income and issue of the said property, during her natural life, and on the death of the said V. Marion Converse, the said property to go to the person or persons, who may at that time be entitled to take the same,” &c., under the provision of the will of the said Richard Singleton. The decree further provided that in the event the said Richard Richardson should decline to accept the trust to which he had been appointed, the Commissioner should report some other suitable person for the appointment. Richard Richardson *has*declined the trust, and no other person has been appointed, or reported by the Commissioner. No suitable person has as yet been found, who is willing to assume the duties of this trust.

One of the principal objects of the plaintiff's bill is, to have this decree rescinded or recalled. If I deemed the question as to the terms of the settlement as *res integra*and not as *res*judicata, I should be much inclined to grant the plaintiff the relief for which she prays. I think it is the very case in which the husband should be refused any participation in the wife’s settled estate.

I have said that the conduct of the defendant towards his wife is characterized by violence, amounting to *scevitia,*and that under such circumstances alimony would be decreed. The plaintiff is entitled to the full benefit of my opinion on this point, and she has it. It is founded upon the answer and the evidence, and I can form no other conclusion. I say, that if this were not an adjudged question, I should feel bound to withhold from the defendant any share whatever in the plaintiff’s settled estate. But how can I recall, or revoke the solemn judgment of the Court, or disturb and destroy vested rights under the decree.

*548Tbe solicitors for tbe plaintiff contend, tbat tbe decree of tbe 23rd November, 1853, confirming tbe Commissioner's report, and prescribing tbe terms of settlement, is only an administrative order, and is subject to be recalled, or modified at tbe discretion of tbe Court under tbe change of circumstances. I can scarcely give tbe learned counsel of tbe complainant credit for candor in tbis most untenable proposition. If tbis order is administrative only, what is a judicial order? Tbe decree of tbe 23rd November, 1853, adjudges all tbe rights of tbe parties in tbe subject matter definitely and conclusively. It adjudges tbat Mrs. Converse was to have three-fourths and Mr. Converse one-fourtb of tbe income of tbe settled estate.

Nothing more remained to be done but tbe giving bond by tbe trustee appointed, and 'the conveyance by tbe Commissioner to him. Tbis part of tbe decree was surely administrative. An order may be in part judicial, and in part, administrative, as was tbe case in *Pell*and *Ball.*A judicial order is tbe judgment of the Court upon the rights of tbe parties on an issue between them, presented by the pleadings, and which right or wrong is binding upon them, unless reversed on appeal, while administrative orders may be defined to be such, as the Court from time to time makes, for tbe purpose of bringing" tbe parties before tbe Court, perfecting the pleadings, advancing the progress of tbe cause to a hearing, managing and securing the subject matter of tbe suit, during tbe pendency of tbe litigation, and finally of putting the parties in the possession and enjoyment of their rights on a decree upon tbe merits. All such orders tbe Court may rescind, or modify at its discretion, as tbe exigencies of tbe ease in its progress may demand. Judged by these definitions which I conceive to be accurate, there is not tbe semblance of an argument for bolding tbe order of the 23rd November, 1853, so far as it decrees a settlement and prescribes tbe terms thereof, to be administrative. In *549support of this conclusion. I deem it unnecessary to appeal to authorities. These might be multiplied to an indefinite extent. But I rest it here upon the inductions of unsophisticated reason. These would teach (if there was no authority) that the solemn judgment of a Court of competent jurisdiction rendered in proper form, and deciding the rights of the parties to the suit, in the subject matter of the suit, upon an issue presented by the pleadings, is not to be set aside and vacated by the Court on consideration of circumstances either prior or *ex post facto.*So much, therefore, of the plaintiff’s bill as prays for a rescisión or modification of the decree of the 23rd November, 1853, is refused.

Since the separation, the plaintiff has been in the exclusive receipt and enjoyment of the rents and profits of the " True Blue” estate. She must account for the defendant’s share of the same, which is the one-fourth part of the nett income. She must account for, and pay over to him his one-fourth part of the income since the separation, and must annually pay to him his one-fourth part of the income according to the terms of the settlement. And it is so ordered and decreed. It is further ordered, that the Commissioner state the accounts between the parties, and that he report thereon.

There is one more matter in the bill. The plaintiff is entitled to some property in the estate of her father, Richard Singleton, which is given to her by the residuary clause of his will. She is also entitled to a distributive share of some intestate property left by the said Richard Singleton.

Neither of these funds or claims is embraced in the decree of settlement, and the plaintiff prays that this portion of her estate be settled to her sole and separate use. This part of the plaintiff’s estate is intact by any decree of the Court, and it comes up now as a new question, as to what shall be the terms of the settlement. From what I have already said, my opinion and the reasons for that opinion on this question are indicated. I feel no embarrassment or hesitation in saying *550■that sbe is entitled to tbis settlement and on tbe terms wbicb sbe proposes.

It is ordered and decreed that tbe property to wbicb tbe plaintiff is entitled under tbe residuary clause or clauses of Eicbard Singleton’s will, as also ber distributive share in tbe intestate estate of tbe said Richard Singleton, be settled on her to ber sole and separate use. It is further ordered, that tbe Commissioner report a suitable person to be appointed trustee, and further that, be report such a scheme of settlement as shall be agreeable to tbe plaintiff and to be indicated by ber.

It is further ordered and decreed, that tbe parties pay their cósts respectively.

Tbe complainant appealed, and moved tbe Cdurt of Appeals in Equity to modify tbe decree, upon tbe grounds following, and in tbe following particulars :.

1. That tbe whole relief prayed by tbe bill ought to have been granted, and for tbe reasons stated in tbe bill, and that tbe decree should be modified accordingly.

■2. That tbe prayer for relief was large enough to cover alimony, if tbe case made by tbe bill and proof authorized iti

3. That tbe decree in tbe case of Mathew R. Singleton, now Martha R. Singleton *vs.*A. Yan Burén, A. L. Converse and others, does not preclude relief upon the new case made by tbis bill.

4. That tbe decree ought to have provided for tbe protection of tbe complainant in living separate and apart from tbe defendant, A. L. Converse.

5.That tbe decree ought to have granted tbe complainant’s. *551prayer to change ber name, the Court having the"power,’and the case demanding it.

6. That the estate of “ True Blue,” and the slaves, &c., thereon, ought to have been decreed to have been settled to the sole, separate and exclusive use of the complainant.

7. That the Chancellor ought to have decreed that the estate, known as the “ Ruins,” and the slaves and property appertaining thereto, should be settled upon the complainant upon the terms of the original settlement thereof, and that A. L. Converse should have been excluded from any use of the same.

8. That so much of the decree as directs that complainant should account for any part of the income and profits of any portion of the estate in the bill mentioned, ought to be reversed.

9. That so much of the decree as directs that the parties shall pay their costs respectively should be reversed, and the defendant, A. L. Converse, be decreed to pay the same.

The case was argued in the Court of Appeals in Equity at May Term, 1856, by *Mr. W. F. DeSaussure*and *Mr. Fetigru,*for the appellant,

and by *Mr. Bellinger*and *Mr. Moses,*for the defendant.

That Court, not being unanimous upon the 'seventh ground of appeal, referred the case, upon that ground, to the Court of Errors, where it was now argued by the same counsel. The questions involved have been so thoroughly considered in the several opinions delivered in the different Courts, that the Reporter regrets less, than he otherwise would, his inability to furnish the arguments of counsel.

(a)

 This decree is printed from a brief furnished the Reporter by the oircuit Chancellor. The omitted passages, indicated by asterisks, were stricken by his Honor. R.

*552The opinion of the Court was delivered by

Dargah, . Ch.

The property involved in the question submitted to this Court, was derived to the plaintiff, Mrs. Converse, from the estate of her first husband, Eobert Marion De Veaux. Proceedings were instituted in the Court of Equity, for the partition of this estate, of which this plaintiff, as widow, was entitled to one-third, and the remainder was divided among the other heirs-at-law of Eobert Marion De Yeaux, who were his children. During the progress of the cause, an order was made for the settlement upon the plaintiff of her share of the said estate. Proposals were made as to the terms of the settlement, which, having been reported by the commissioner, the report was confirmed. In pursuance of the terms of settlement prescribed by the decree of the Court, Mr. and Mrs. Converse, by a deed bearing date 27th March, 1849, conveyed all the share of Mrs. Converse in said estate, to John C. Singleton, for the sole and separate use of Mrs. Converse, during her life, and after her death for such persons as she, by any instrument in the nature of a testament, should appoint; and, in default of such appointment, to her right heirs — with the reservation of a power to Mrs. Converse, by any deed executed by her in the presence of two witnesses, to revoke the uses declared in the deed creating the trust, and to declare new uses, and to convey the property, or any part thereof, to any person or persons as she saw fit, in the same manner as if she was a *feme sole :*also to sell said property, or any part thereof, with the view of changing the investment: also at her discretion to remove the trustee, and substitute another in his place. To this estate there also belonged two negroes, Peter and Gabriel, conveyed by Eichard Singleton, to John 0. Singleton, by a deed bearing date 9th July, 1849, for the same uses, and subject to the same conditions, and agreements, as are expressed in the deed of 27th March, 1849.

Mrs. Converse afterwards exercised the powers reserved to *553hex, and by a deed dated 13th September, 1850, she revoked the uses declared, as well in the marriage settlement deed of 27th March, 1849, as in the deed of Richard Singleton of the 9th July, 1849, and, by her deed of revocation, declared and appointed that the said John 0. Singleton, should hold the said property for the *joint*use of the said A. L. Converse and V. Marion Converse, during their joint lives; and if the said A. L. Converse should be the survivor, for his use during his life; and if the said V. M. Converse should be the survivor, for her use, &c. By a deed bearing date 5th January, 1852, she revoked the appointment of John C. Singleton as trustee, and appointed a substitute, E. M. Anderson, as trustee in his place.

On the 12th day of May, 1854, the plaintiff filed this bill, praying, *inter*alia, that her deed of revocation and appointment, dated 13th September, 1850, should be set aside, and, by a decree of this Court, declared null and inoperative, and she be restored to her original rights, as if such deed had never been executed.

The Chancellor, who heard the case on the circuit, refused to grant the plaintiff the relief which she sought. He refused to set aside this deed, and decreed accordingly. From this decree an appeal was taken to the Court of Appeals in Equity on various grounds; among which is one, that assumes, that the circuit decree is erroneous, because it did not set aside, and declare as null and void the aforesaid deed of revocation and appointment. This appeal having been heard by the Court of Appeals in Equity, and the said Court not being-unanimous in its opinion, as to the correctness of so much of the circuit decree as relates to the said deed of appointment, ordered, that so much of the circuit decree as was brought in question by the said ground of appeal, should be referred to the Court of Errors.

The case has accordingly been placed on the docket of this *554Court. It bas bere been beard; and I, as tbe organ of tbe Court, am now to announce its judgment.

Tbe ground of appeal, wbicb bas been submitted to tbis Court, is in tbe following words: “ that tbe Chancellor ought “ to have decreed that tbe estate known as 1 Tbe Buins,’ and “the slaves and property appertaining thereto, should be settled “upon tbe complainant, upon tbe terms of tbe originalsettle“ment thereof, and that A. L. Converse should have been “ excluded from any use in tbe same.” Tbe estate referred to bere as ‘ Tbe Buins,’ was tbe estate conveyed in tbe original deed of settlement, (27th March, 1849,) tbe uses of wbicb were changed by tbe deed of revocation and appointment, (18th Sept., 1850.)

If tbis deed can be successfully impeached upon tbis ground; if there be any vice or defect whatever in it, wbicb, according to tbe principles wbicb prevail in tbis Court, demands its recision,-the plaintiff’s motion must be granted. Tbis appeal brings into issue a question of law,_and a question of fact, wbicb, in their turn, I will briefly consider. ■

That a married woman, having a separate estate, with a general power to dispose of tbe same as if she were a *feme sole,*may bestow it upon her husband, is so well established at tbis day, as not to admit of debate, or doubt.

Whether we refer to English authorities, or to tbe decisions of tbe Courts of tbe different States of tbis Union, including those of South Carolina, tbe result is tbe same; the principle is clearly settled, and nothing can be considered as settled, by judicial decisions, if tbis principle can be brought into question, or be shaken. On tbis point I should be content to adopt what Mr. Boper, in bis treatise on Husband and Wife, 2 vol. 217, bas given as tbe result of the English decisions, namely: “ that, in transactions between husband and wife, “ relative to tbe separate estate of tbe latter, she, *prima*facie, “ will be viewed in tbe light of a *feme sole,*and as such be *555“ competent to dispose of it to him, or for bis use; subject to “tbe proof of fraud, or undue influence on bis part.”

It is equally well settled, (tbougb not by sucb a series of cases,) that where tbe wife, under a general power of disposition, bestows ber separate estate upon ber busband, tbougb tbe prescribed forms of conyeyance be punctiliously observed, tbe Court will regard tbe transaction witb jealousy, and look into it witb a rigid scrutiny, under an apprehension, that tbe gift to tbe busband may have been extorted by an abuse of tbe marital power and authority. And if it appear that tbe gift has been wrung from tbe wife by compulsion, or a wrongful exercise of authority, by duress, physical or moral, or by any undue means, or influence, tbe deed will be set aside, and tbe wife be restored to ber original rights. As to tbe correctness of these principles tbe Court is unanimous. Nor did I understand them to have been controverted in tbe argument. It is unnecessary to adduce authorities. Tbe books abound witb them. Many of tbe cases, English and American, have been cited, and commented upon by Chancellor Kent, in *Braclish*vs. *Qibbs,*3 Johns. Cb. 523. Reference to them may also be bad in any of tbe recent elementary treatises upon tbe subject.

It is easy to say, that if tbe gift is obtained by compulsion, duress, or fraud, it is void; all deeds and contracts are void for those causes. But gifts from the wife to tbe busband may be set aside for acts or means not falling within these definitions ; in other words, sucb gifts to tbe busband may be set aside for causes, which would not call for tbe interposition of tbe Court in similar -transactions of tbe wife witb strangers-. This is on account of tbe suspicion, witb which tbe Court regards tbe dealings of tbe busband witb bis wife, for bis own benefit. What will constitute tbe undue means or influence which will invalidate tbe gift, cannot be defined witb precision. In a case not amounting to compulsion, or fraud, tbe illegiti*556macy of tbe means or influence employed, must, I apprehend, from necessity, be left to tbe sound judgment of tbe Court.

It seems not to be essential, that tbe gift of tbe wife to tbe busband should spring from tbe spontaneous suggestions of her own mind. Tbe persuasions, and importunities of tbe busband, unaccompanied by commands, or threats, though aided by tbe suggestions and advice of other persons, are not illegitimate, nor sufficient to invalidate tbe gift. In a well considered case, where influences like these were brought to bear upon the wife, to induce her to bestow a portion of her separate estate upon her busband, who was without property, tbe Court refused to interfere, and to set aside tbe gift, on tbe application of tbe wife. *Oruger*vs. Oruger, 5 Barbour, 225. In tbe case cited, as in tbe case now under consideration, tbe gift was for half of tbe wife’s income. It was said by tbe presiding judge, in delivering tbe opinion of tbe Court: “it is certainly favorable to tbe instrument in question, that it contained a reasonable disposition of tbe income of Mrs. Cru-ger’s estate. It could not be considered an abuse of her power, to devote a portion of her income, what she could conveniently spare, to promote tbe welfare, and advance tbe interests of one, whom she had solemnly promised to love, honor and obey.”

I have now said all that I meant to say, or that I conceive it necessary to say, in regard to tbe principles of law properly applicable to tbe case. Our next inquiry will be in reference to tbe facts.

Tbe deed of marriage settlement of 27th March, 1849, clothed Mrs. Converse with an unlimited power of disposing of her separate estate secured by that deed. Tbe property mentioned in this instrument, (which is now tbe subject of controversy,) was conveyed to tbe trustee for tbe sole and separate use of Mrs. Converse, during her life, and after her death, to such persons as she, by any instrument in tbe nature of a testament, should appoint; and, in default of such appoint*557ment, to ber right beirs — with a reservation of a power to Mrs. Converse, *by any deed executed by her in the presence of two*witnesses, *to revoke' the uses declared in the said*deed, *and convey the said*property, *or any part thereof, to any person or*persons, *as she saw fit, in the same manner as if she was a feme sole.*It is impossible for Mrs. Converse to have been invested with more ample powers. In the execution of a power of revocation and appointment, it is necessary that the forms prescribed by the instrument creating the power, should be strictly pursued. In this case the power was duly exercised as to form. By a deed bearing date the 13th September, 1850, signed and sealed by Mrs. Converse, in the presence of, and attested by two witnesses, in the exercise of the power reserved, she revoked the uses declared in the deed of marriage settlement, and declared and appointed, that the trustee should hold the said property for the joint use of herself and her said husband, during their lives, &e. There is no controversy as to the *factum*of the deed; nor is there any allegation, or pretence, that its execution was extorted by personal restraint, or fear, or under circumstances which would amount to actual duress. Its validity is brought in question on the ground, that the gift to the husband was wrung from the wife by undue means, and by an abuse of the marital authority and influence. The case as presented to the Court, is thus reduced to a question of fact, which must be dispassionately resolved by a diligent investigation and consideration of the facts that are stated in the brief.

In accordance with one of the principles above laid down, as governing the decision of the case, the Court has looked with jealousy and suspicion on this transaction, and has cautiously, and deliberately weighed all the circumstances, for the purpose of seeing if the gift was tainted with any of those characteristics, which would call upon the Court, according to its acknowledged principles, to vacate, and set it aside.

*558It is but too apparent to tbe Court, tbat tbe defendant bas acted badly, and tbat bis conduct towards tbe plaintiff, in some of tbe stages of tbeir matrimonial life, was marked by unkindness, overbearing and cruelty. But these passages in tbeir married life, were long posterior .to tbe deed of appointment now sought to be set aside; at tbe date of which, and for several years subsequent, there does not appear to have been any serious disturbance of tbe domestic relations between the plaintiff and defendant, or of misconduct on bis part. If tbe deed was originally unaffected by circumstances tbat would vitiate and defeat it; if it was in its inception valid, I cannot perceive, upon what principle of law, or equity, it can be invalidated by circumstances *ex post facto.*A proper mode by which to test tbe validity of this deed, would be this. Suppose a suit bad been instituted, with tbe allegations and prayer of this bill to set it aside, immediately after its execution, or within two, or even three years afterwards, — what would have been tbe result ? It is manifest that the circumstances tbat then existed, would not have afforded tbe slightest ground to impeach its validity. If, by its execution in a lawful manner, tbe defendant bas acquired vested rights of property, those rights cannot be divested by bis subsequent illegal acts, though bis conduct towards her might have been atrocious, and bis trespasses against her aggravated. It is one of the highest triumphs of justice, and a proud victory achieved over human passion, and infirmity, when the worst of men, (without intending, by any means, to insinuate, that the defendant falls within that category,) can have his just and legal rights awarded to him by judicial tribunals, irrespective of bis character, conduct, or position. A party may be under the ban of public opinion. He may be justly obnoxious to the foulest imputations. But hate cannot strike him in tbe balls of justice. Popular passions and prejudices, and external influences cannot reach or affect this tribunal, whose *559ministers are pledged, by their very official investiture, to “do justice to all sorts of people.”

But it will be necessary for me to look into the evidence upon this question of fact. And here I will observe, that all the evidence that bears upon the subject is contained in the bill and answer; unless, indeed, we suffer the defendant’s misconduct in 1854, to show that the deed of appointment was extorted by similar misconduct in September, 1850. It should be remembered also, that the disturbances in 1854, arose from causes entirely different from contests about property. The questions- about the property, at the latter date, ha'd all been amicably adjusted, and the parties seemingly satisfied on that subject. The subsequent wrangling between the parties, and the consequent disruption of their ties, arose, so far as I can perceive, from a want of congeniality of temper and disposition.

The charge, that the deed of appointment was procured from the plaintiff by undue influence, or an abuse of the marital power, is but faintly presented in the bill. This is the whole of what the plaintiff says on this subject. She says —“the defendant became so irritable and unamiable at the terms of the settlement, that your oratrix was induced, at his earnest solicitation, to revoke the uses of the deeds above mentioned, and on the 18th day of September, 1850, without the knowledge of her father, or her trustee, in order to preserve peace and harmony in her family, she executed the deed, whereof a copy is herewith filed, marked Exhibit C., thereby revoking the uses secured to her by the former deeds, and conveyed to the same trustee the said property upon this substituted trust, to wit: that the trustee would permit your oratrix and the Rev. A. L. Converse to have a joint use of the income and profits during their joint lives, and that the said A. L. Converse, if survivor, should enjoy the whole income for life, and that if your oratrix was survivor, it should be enjoyed by her. By this deed your oratrix reserves all the power *560secured to ber by tbe deed of March, 1849, except so far as tbis deed changes tbe use of tbe property during tbe lives of tbe said A. L. Converse, and your oratrix. Your oratrix further shows unto your Honors, that various acts, on tbe part of tbe said defendant, bad conspired to mar ber domestic happiness; nevertheless, to pacify him and secure peace at home, she consented to remove ber brother, John C. Singleton, from tbe trusteeship, to which be was, by no means, unwilling, as be was greatly dissatisfied with tbe change in tbe terms of tbe trust. Accordingly, on tbe 5th day of January, 1852, she executed a deed, whereof a copy is herewith filed, marked Exhibit D., by which she conveyed all tbe property mentioned in Exhibits A, B, and 0, to E. McKenzie Anderson, Esq., a worthy gentleman of Sumter District, named by the defendant for that purpose, but who was in nowise connected with, or related to herself, or her family. By tbis deed of January, 1852, your oratrix is made to recite that by the deed of 13th September, 1850, she had renounced the power to change the uses of the property during the life of the said A. L. Converse. But your oratrix expressly declares that the deed of January, 1852, was brought to her by the said defendant ready prepared, and looking to the main object he had in view, to wit — the change of the trustee, your oratrix signed, without having reference to the said recital, the correctness of which she does not admit.” She prays, *“*that the said deeds may be so far modified, as to revest in her, or in the trustee for her, her rights in the property which she enjoyed, in the same manner as prior to the said deed.”

The foregoing extracts present the whole of the plaintiff’s case as it is set forth in the bill. The most of what is contained in these extracts, relates to the instrument by which the trustee was changed, rather than to the deed of appointment, which was the *gravamen*of the bill as to this branch of the case.

The answer of the defendant to this part of the bill, is as *561follows: “ This defendant submits, tbat if be did become un-amiable at ‘ The Ruins,’ it was in consequence of tbe entire command, and assumption of authority by the complainant in relation to the property there; for, supposing that by the deed all his rights as husband were subordinate to her claim under the deed, he at last informed her that rather than be goaded by a constant reference to his position in regard to the property, and to be perpetually harassed with a constant repetition from her, that this was *her*land, these *her*negroes, and *her*horses and cattle, he would remove to the Parsonage, where at least he could be master of his own house. That when he married her he was residing at the Parsonage, a comfortable and commodious dwelling, and it was upon her invitation he removed to 1 The Ruins ’; that these difficulties in reference to her individual authority, were compromised and arranged, and thereupon she agreed to execute the power reserved to her in the said deed of settlement, and did so by executing the deed of 13th September, 1850. The said deed was executed at the house of Dr. *~W.*W. Anderson, with whose family she was very intimate, and witnessed by the doctor and his lady, she remarking at the time to Mrs. Anderson, as the defendant believes, her cheerful satisfaction in thus securing to her husband ‘The Ruins’ and the negroes, as she thought it was due to him.”

This charge in the bill, and this portion of the defendant’s answer, constitute literally the whole evidence on the grave and important question, whether the deed of appointment was procured from the plaintiff by undue influence. She says, that the defendant was so much dissatisfied with the terms of the settlement, that he became irritable and unamia-ble, while they resided at “ The Ruins,” and she, to preserve peace and harmony in the family, executed her power of appointment in his favor. His admissions, in reply, are stated hypothetically: *If*he became unamiable at “ The Ruins,” it was in consequence of her constant and arrogant *562assertion of exclusive dominion over tbe property, in a manner that was offensive to him. If his admissions are to be taken against him, he ought to have credit for the accompanying explanations. In admitting his moroseness, he assigns causes, which certainly palliate, if they do not excuse his ebullitions of temper. He goes on to say, that these difficulties were compromised, and she agreed to execute the power of appointment. He concludes by stating, that the deed was executed at the house of Dr. Anderson, and witnessed by himself and his lady, whose attestation appears on the face of the paper. Here was certainly an opportunity of expressing her dissatisfaction, if any existed. On the contrary, the defendant, in this part of his answer, represents her as expressing to Mrs. Anderson “her cheerful satisfaction in thus securing to her husband ‘ The Ruins,’ and the negroes, as she thought it was due to him.” If this part of the answer was false, it was easy to have proved it so, as Mrs. Anderson still lives in the neighborhood, and might easily have been brought forward as a witness. Are these admissions sufficient to invalidate the deed ? On the contrary, if they are to be believed, they would lead to a directly opposite conclusion. I doubt if the defendant, or his counsel, in drafting the answer, supposed that they were called upon to answer such a charge, or that the statement could be distorted into a concession, that the deed of 13th September, 1850, was procured by undue influence. There is nothing in the circumstances, attending these unhappy domestic dissensions, so far as they have been developed to the view of the Court, which would go to show, that the plaintiff’s character and disposition were of that soft and yielding material, over which coercion of any kind, could have been successfully exerted. On the contrary, they reveal, on her part, an uncommon strength and tenacity of will, and an indomitable courage, and firmness in resisting requirements, that were not agreeable to her.

*563It is said to present an infavorable view of tbe defendant’s case, because tbe wife bas stripped berself of ber property, wbicb had been secured to berself, to bestow it on ber husband. This is certainly an exaggerated representation. She did not strip berself of her property. She was possessed of an easy competency in possession, with a large estate in expectancy, soon after realized. Her children bad an independent property derived from their father’s estate, also large expectancies since secured to them by way of remainder after their mother’s life estate, under tbe will of their grandfather. Her husband was without any estate. He was the Pastor of a refined and respectable congregation of the Episcopal Church. It was natural that he should desire to possess some independent resources, in the 'event of his being the survivor. It was natural that she should be willing to gratify his reasonable desires in this respect. It was not unreasonable, that she should have provided for his wants, as she did by the deed of 13th September, 1850, which was for the joint use with herself of the estate called “ The Ruins,” for their joint lives, remainder to the survivor for life, with a power of appointing by testament, and in default of such appointment to her right 'heirs. I think, that the provision, which the plaintiff made for her husband, was not unreasonable, without reference to her expectancies.

The terms in this deed resemble nearly those that a Court of Equity ordinarily prescribes in decreeing a settlement. As the Court never orders a settlement unless the wife be under age, or asks for it, it will sanction any terms, which may be agreed upon by the husband and wife. The most usual terms of a settlement in Equity, direct the estate to be held for the joint use of the husband and wife for their joint lives, remainder to the survivor for life, remainder to the issue of the marriage. The husband has rights in his wife’s equitable estates, that are recognized and respected. Where the Court is called on to adjudicate, it is *564referred to tbe Commissioner to report terms. Most usually tbe parties agree, and tbe report is confirmed without exceptions. In cases where tbe parties do not agree, tbe Court is governed by circumstances. If tbe husband has already received largely of tbe wife’s estate, that fact is considered, and great weight is given to it. If tbe husband has abandoned bis wife, or otherwise maltreated her; if be is a prodigal spendthrift, or hopeless insolvent, or otherwise worthless and profligate, the Court will settle the whole of the wife’s estate to her sole and separate use. But, in cases unaffected by peculiar circumstances, terms nearly resembling those of this contested deed, are prescribed by the decree. In some respects, the husband for the most part obtains better terms than in this case. Eor a provision for the issue of the marriage, is scarcely ever omitted in a settlement in Equity, which provision was not introduced either in the original settlement of the plaintiff’s estate, or in the deed of appointment. I allude to the practice of the Court in this particular, for the purpose of showing, that this is not an unreasonable provision for the husband, nor an unjust concession on the part of the wife; similar, and in some respects better terms, being conceded to the husband in the daily practice of the Court of Equity.

But it must be remembered, that the deed of appointment was executed on the 18th September, 1850, and the plaintiff did not impeach it for this, or any other cause, until the 12th May, 1854, when she filed this bill. In the meantime she lived in tolerably harmonious relations with her husband. In the interval, her expectancy under her father’s will fell in. It was a large estate, consisting of a valuable plantation, known in these proceedings by the name of “ True Blue,” with two hundred negroes, provisions, stock of every kind, &c. In the summer of 1853, a bill was before the Court of Equity, for Bichland District, filed by the executor of the estate of Richard Singleton, for an account and settlement of *565that estate. He also prayed that Mrs. Converse’s share should be settled upon her. The question as to the terms of the settlement was before the Court. It was referred to the Commissioner to report as to suitable terms. While this reference was pending, Mr. and Mrs. Converse amicably-agreed upon terms, which were reported by the Commissioner, and sanctioned by the decree of the Court. Doubtless this agreement as to the terms, was modified by the fact of the existing provision in the defendant’s favor, by virtue of the deed now sought to be set aside. He was probably induced to be contented with less, and by the rules of the Court was entitled to ask less, in consequence of the provision already made for him out of his wife’s estate.

But surely, if the plaintiff had suffered any grievances like those complained of in this bill; — if the defendant had by compulsion, by vile artifices of fraud, or undue means of any kind, wrung from her the provision which she made for him in the deed of 13th September, 1850, *then*was the favorable occasion for her to have proclaimed it. When he was claiming a further provision out of her newly acquired property, it would have been natural and consistent for her to have resisted, on the ground of his improper.conduct in obtaining the first provision. But she never opened her mouth as to these grievances, which, three years afterwards, are so vehemently insisted on. She acquiesced; she more than acquiesced; she amicably agreed, that he should have one-fourth of the nett income of the “ True Blue ” estate, an interest much larger than half of the income of “The Bums.” But not only does she fail to bring forward these charges on that propitious occasion, but she declares, in her answer to the bill of the executor, praying, *inter alia,*that her “ True Blue” estate be settled upon her, that she has entire confidence in the character of her husband, and assented to the settlement as it stands. Making every allowance for the delicacy and pride, which refrain from lifting the veil which concealed from *566public view disreputable family transactions, it is difficult under tbe circumstances of tbis case, to believe, that the deed of 13th September, 1850, or that of the 5th of January, 1852, were extorted from her by coercion, undue influence, or by any of those means that would render it proper for the Court to set it aside.

In deference to the zeal with which this case has been argued, and the deep interest which the parties feel in the issue, I have extended these observations to a length not demanded by the questions that have been submitted to the Court, nor the difficulties attending their solution.

It is ordered and decreed, that so much of the appeal in this case, as comes up from the Court of Appeals in Equity to this Court, be dismised, and the Circuit decree in that respect be affirmed.

JOHNSTON and Wardlaw, CO., and Wardlaw, Withers, G-lover and Munro, JJ., concurred.

O’Neall, J.,

dissenting.

I cannot concur in the conclusion of a majority of the Court of Errors, and will briefly state my reasons for a different conclusion. The decree of the Chancellor, on Circuit, has fixed upon the defendant the facts of the abuse of the complainant amounting to *scevitia,*and he has declared if he had the power, he would not allow Mm, the defendant, any share or participation in the complainant’s separate estate. I do not use the Chancellor’s precise words, but the substance of his opinion.

This conclusion of the Chancellor, who heard the case below, does not certainly entitle the defendant to any consideration beyond his exact legal rights.

The question for the Court of Errors is, ought the deed of 13th of September, 1850, revoking the uses of the deeds of 27th March and 9th of July, 1849, to be set aside ? The deed of the 27th of March, was executed in conformity to the order *567of tbe Court of Equity, and tbat of tbe 9tb of July by ber father. Hex subsequent revocation of tbeir uses was without consulting ber trustee: but she bad tbe power so to act by tbe express terms of tbe deed of settlement of March, 1849. Was tbe deed of September, 1850, ber own free and voluntary act ?

If so, it must prevail, otherwise it ought not. Tbe revocation is in favor of tbe husband. I think every deed or other conveyance to him by bis wife, is legally regarded as procured by bis force and influence: and to free them of tbat, be must show, tbat they were the free and voluntary act of tbe wife. In *Calhoun v.*Calhoun, Rich. Eq. Cases, decided in 1831, when I was a great deal more familiar with tbe administration of Equity than I ain now, with tbe assent of my brethren, Judges Johnson and Harper, I stated what I conceive is still tbe true principle regulating a disposition of tbe separate estate of tbe wife. “I understand there was no legal duress. This was, however, not necessary to be shown to avoid her acts. In law, she is always, in tbe presence of ber husband, supposed to act by his compulsion, and ber act is therefore considered as his. *It was for those undertaking to sustain the sale, to show it to be the result of her own will.*If it arose from the persuasion of tbe husband, who has been pronounced by tbe Chancellor, to be of that class, ‘who are described as worse than an heathen,’ it was bis sale and not hers.” Tbat sale was to a stranger, — much more what was required there, must be held to apply against tbe husband.

If tbe revocation bad been in favor of ber brother, tbe trustee, John C. Singleton,' could it have prevailed, unless tbe utmost fairness bad been shown ? Clearly it would not. In what different position does tbe defendant stand? It seems to me there is nothing to bis advantage to be found in it. He is supposed to be legally in tbe exercise of more irresistible power and control than tbe trustee. *Prima facie,*then tbe deed cannot prevail. This *prima facie*conclusion *568must be removed by showing, that it was tbe result of tbe 'wife’s own will.

Tbe will of a married woman operating as an appointment under a power, or of ber personal estate by tbe consent of ber husband, may be good, provided, in this last case, it be not to himself. *Ward*v. Glenn, 9 Bich. 127; *Hood*v. *Archer,*1 McO. 147. In .all tbe cases of tbe execution of wills under a power by a *feme covert,*it must be shown to be free and voluntary.

In *Grigby*v. *Oox,*1 [Ves. Sen., 517, Lord Hardwicke although affirming tbe sale made of tbe wife’s separate estate by herself, according to an arrangement of tbe husband, yet takes occasion to say, very properly: *“*And this will bold, though tbe act done by tbe wife, is in some degree a transaction alone with tbe husband: although in that case a Court of Equity will *have more jealousy over it;*and therefore if *there is any proof,\*that tbe husband bad any improper influence over tbe wife in it by *ill,*or *even extraordinary good*usage, to induce her to it, tbe Court might set it aside.”

Tbe whole question is, according to these principles, resolvable by tbe facts.

Tbe bill charges, that the'deed was executed at tbe earnest request of tbe defendant and to remove causes of irritation, imaginary or real, to which be bad given way. Tbe words of tbe bill are, that "the defendant became so irritable' and unamiable,” at tbe terms of tbe settlement, that she, at *his earnest solicitation,*was induced to revoke tbe uses.

This statement is substantially admitted by tbe answer. It' is true, reasons which tbe defendant supposes justified bis course, are given. But that does not help tbe facts, that be procured tbe deed of revocation to be executed, and that it was executed in bis presence, and is to be considered as an act done by bis compulsion. *It is not the result of her free will.*

But it is supposed, that other acts of tbe wife show, that it *569was ber free will offering to ber bbsband. T confess I have been unable to find anything of the kind in .the case. The deed changing the trustee and appointing another, can have no such effect. It too was executed in the presence of the husband, — and as alleged in the bill was a further offering to the defendant to obtain peace.

The settlement of the “ True Blue ” plantation and slaves, made by the Court of Equity, July, 1853, cannot have any effect on the previous deed. The Court made no inquiry, as to the means of the defendant; the parties *made*their own proposals; no reference was made to “The Ruins.” .The testimony of Mr. Shand shows, that those proposals so far as the complainant was concerned, were .another offering to obtain peace. The answer of the complainant ■ to the bill relating to the “ True Blue” estate, which she expresses great confidence in the defendant, ought not surely to have any effect against her, when that confidence was so outrageously abused in the January following.

The sad events of January, 1854, have separated forever, these unfortunate people, and I think the defendant has been so much 'to blame, has pursued such a course of outrage towards the complainant, that no inference in his favor ought to be made from the matters to which I have alluded. He has no claim to the bounty of his wife ; *he ought not to live upon it. '*I think the deed of September, 1850, revoking the uses of the deeds of March and July, 1849, ought to be set aside.

Dunkin, Oh., and Whither, J., concurred.

The opinion of the Court of Appeals in Equity, upon the questions not referred to the Court of Errors, was then delivered by

Wardlaw, Oh.

The Circuit decree in this case vindicates itself by its own reasoning and we add some observations in *570deference only to tlie earnestness and ability, with wbicb tbe appeal bas been prosecuted. First, as to the change of name prayed by the plaintiff. We suppose that under the general terms of the Act of 1814, (5 Stat. 718,) authorizing “any person who may be desirous of changing his or her name for that of another,” to exhibit his or her petition to the Court, “setting forth the reasons” for the application, that a wife against the opposition of her husband, is entitled to exhibit such petition; but the Act declares it to be “the duty of the Judge to determine and grant or not grant the prayer thereof, as to him shall appear proper, having a true regard to the true interest of the petitioner.” If an estate were left to a wife on condition of her assuming some other name, the Court might well order the change, notwithstanding the capricious obstinacy of the husband, but in general, wives have surnames by courtesy only, adopted from their husbands, and it is inconvenient that they should have appellations different from husbands. We are satisfied that the Chancellor exercised judiciously, the large discretion entrusted to him by the Act, and promoted “the true interest of the petitioner,” in rejecting an application which would seem to close the door to reconciliation with her husband.

Next as to alimony. The bill is not framed with reference to alimony; for although it contains allegations of cruelty on the part of the husband, one of the facts looking to alimony, it concedes that the wife has competent .means of maintenance, and that the husband has no separate estate needed for her support. If however, the bill had expressly prayed for alimony, our opinion would have been against the claim of plaintiff. Alimony means an allowance from the husband’s estate for the maintenance of the wife during separation, and is never given where she has sufficient means of subsistence in comfort. Without elaborating the point, I refer to Bishop on Mar. and Div., Sec. 549 and the note, and to Sec. 562, as fully sustaining this doctrine. Here, confessedly the wife is *571ricb and tbe husband poor; and whatever may have been his • misconduct in conjugal relations, we do not perceive the propriety of unnecessarily impoverishing him. *Ooster*vs. *Coster,*9 Sim. 597; *Green*vs. *Ottie,*1 Swin. & Stu¡ 250.

Then as to the conclusiveness of the decree of November, 1853, we.are satisfied with the reasoning of the circuit decree, and only add some authorities; *Muse*vs. *JEdgerton,*Dud. Eq. 179.

On the point of protecting the wife in living apart from her husband, it is sufficient to refer to *Taylor*vs. Taylor, 4 Des. 174 and *Threewitt*vs. Threemtt, 4 Des. 574.

The questions as to “ The Bums ” estate have been determined by the Court of Errors, conformably to the decree. It is ordered and decreed that the Circuit decree be affirmed and the appeal be dismissed.

JOHNSTON, DuNKiN and DakgAN, O.O., concurred.

*Appeal dismissed.*