The New York herald., 1844-10-20
In Chancery.
Before Vice Chancellor McCoun.

OCT H.-Cruser Va. Douglas. et ais --Mr BUTLER con.
cuded his argument tor the dtfent when Mr wood
opened in reply for the plaintiff This involving an
important question Of law in relation to marital rights is
looked upon with deep interest and as the accounts
heretofore published in this have been principally
such a. give the the vsw OF most favorable to the de-
hs 70 ,ns ~
He opened by saying that he would endeavor to he az
brie as possible both because Of the ndsposon under
Court had been SO seriously taxed by the re
marks OF the opposite counsel Ner would he initiate
should refrain IRON any comments on either the parties
or the witnesses in the at all dsrespectfui ca
culated to wound their feelings There are really but
issues in this suit the first to the validity OF the
Post Nuptial settlement executed by the husband set
Ting both principal and income the wife, and the
cond as to the validity Of her deed securing him
half oi the income in return These the Alpha and
Omega Of the case-a the intermediate letters might
well discarded and the first he SHOULD contend
that was wholly and absolutely void and cannol he
reformed or made good. and that the other Is perfectly
ehecual and binding In deciding this case, the Court
will act principle and according settled law,
allow the discharge OF it's duty TO be influenced by feel
ing or by defamation, the appropriate sphere for which
to regard the question az to where the parties are.
aid where they ought 10 be. That there was any
ante nupial sgreemant binoing the complainant. 10
there partioe Of proof making u out. That set
tlement was executed of hand and ia the hilarity
Of the moment after the marriage had taken place.
planants free will and 10 convince his ife that he
marriedtrom dsnterested motives The oh lection that
il executed by complainant oi his own he
Is bound not to dispute it, admit has force but also
has against his we Il must be remembered there
counter and reciprocal arrangements by hsr signed
with all her heart" and to the faithful performance OF
which she pledged her friends, and invoked her Cod
Let these stand and shall the post nuptal settlement
hut If they are to be annuled let the whole 60 by the
board and we will begin over sgan Mr. Lruser Is per.
tecty ready and willing 10 stand by existing &C.
ments but h wiies deeds are to be vacated ought
his II will nat do for the other side to make
reflections the OF repuoatisn when they
the fst to violate their contracts This stone thrown
from glass house. and the distinction be observed
10
while his wifes must become so by her own individual
act To the com planant this il case of the utmost i'm
portance Rely ing upon his wfe's repeated gifts him
Of the income OF the estate for many he abandoned
his profession and all know, apart iron intellectual
qua fcations, how difficult not impossible IL to get
oack into business when such has been the After
bsraying him into this his wife has taken back all
him struggls livelihood amid the very difficulties
his connexion with her and her own conduct, have
created Tat he did give up his profession on the faith
circumstances in the case go to show, and it is
incontestiby proved by Mrs Monroe's test mony
have never think, heard my sister say in SO many
words thut she wished and requested you give up
profession but repeatedly she said to me- aud Others in
my presence the business of the family is enough for
Mr. Cruger with that he occupy himself Why should
be deprived OF his society when he il tied down at his
law Officer There is enough for both OF us from my
perty" When the revised statutes OF this State trs,
passed either IRON Ignorance otherwise attempts
made to set their provisions at dehancebut the
in tine celebrated Lorard had to be
followed Of first asking how an ins,rum Mt stood
mon law ana then by bringing it alongside and sqnarlng
II with the statute The zane rule OF construction
be applied here, end will be then that this deed
Post Nuptia settlement at common lw gave the wife
fee simple in both the real ahd personal property The
provision contains that the keep du
ring the marriage exempt from the husbands debts
troll was not Intended as Limitation or Infringement OF
the estate conveyed hut she to have tuat estate
though she were uDmarred not for life only but in fee
And she to bs active not only in the enjoy bu
in the management and disposal OF II the trustees tool
no legal estate 1t not executed in them
law under the statutes Of uses Of Henry the Sh Nor
can the authority or power given to her be said TO have
been engraited estate in the trustees IL Is oil the
very and scope OF the estate itself nwrougt into
its very texture The trustees here perfectly passve
the cestn que trust alone is active and without thei
intervention manage receive, and alien the whole
property. Such an estate is more especially
clare all trust nugatory except such specified
in the 65th sectioa Of the act on that subject
and they require that the whole shall pass The
only have the use OF enjoy ment otherwise it Is formal
passive trust against the policy of the law, and void H.,
opinions II 40 grave donrt prevails in the judicial
mind whether power in trustees ito receive the in.
cDme and pay over ard not to apply it 10 the Of
the interested is moi old by statute how II
be pretended that this trust valid where the wife
sell is to receive, manage, and dispose Of both primo pal
and income by her ORDERS receipts, Deeds or will
Nor will it do resort here the Procruses operation
OF cy pres, that attempted in the LoIard case
by the Chancellor but wholly failed in the Court
Of Errors; and the attempt was made under the
very provision OF the Revised Statutes now
counted upon, which declares it to be the duty
ties far as possible. That provision merely
declaraory Of the law It existed great portions Of
the Revised Statutes But II never meant by
this that the we'll established rules aud principles of the
law should be bro down and tramped upon for the
purpose should Courts undertake TO rszee lop off, build
up reconstruct contracts, deeds and Wills according to
arbitrary discretion shall be submerged In
Of uncertainty and insecurity. That the construction
now put upon this settlement Is correct and vertab
the acts OF Mrs Crnger herself demonstrate for she
does with the property just as she eases and her trus
tees have no power or agency. The estate in them s
mrey nominal and lusory and contrary TO the whole
policy and spirit Of the Revised Statues As to the real
property there be question but that the trust
utterly void Whether It IS so as to the personal.
must be guide in the matter SO repeatedly decided
the point the ground OF analogy The Revised Sta
the subj ct Of powers and trusts do apply
both personal ami real estates and hence this deed
imperative and void TO both Not voidabls only, but
absolutely void and incapable Of being bnt restored
to life and activity To reconstruct through the doc
tne Of specific performance the power OF hs Court has
been invoked the pretencc that there antenup
tia between the parties leading 10 this settle
ment To reform the old settlement or direct new one
the Court must have the previous articles properly and
spty made out in plain and specific terms and by clear
and POSITIVE evidence Here there nothing OF the kind
There vague loose fitting hope tanned Mrs
Cruger that her husband would make settlement but the
proof shows concusvey that he gagged pro.
ed before the kind Of
make and reserved the discretion tirely TO himself
In this connexion, where Il Ia proposed that the court
shall interfere in derogaon Of the marital rights, II Is
material to consider what those rights As the Law
stands every husband his marriage takes the whole
Of the real bis and these rights OF the hur.
band not only protected but favored by the courts
pecally rs against wife Who is in fault In the Of
Fry Fry Paige 633 the court has said 1T does not
encourage breach OF du the part OF the wife by
afordng her maintenance out Of the property which
belongs to the husband at law by virtue Of his marital
rights, although IL to her by descent gift from
her relations, while she continues TO reside apart
from her husband against his consent and without any
jnstifable cause"see also Bullock MeDRies, Vcsey
79s. That marriage settlement may be good, is not do
is pretended that there is any thing in either the
old or the new Testament, forbddiDg such instrument
though there is plenty If Scripture, that "the wife must
be subject TO her husband in all thDgs and that he
mens certainly do clash. And as to the policy Of such
learned Judges have greatly doubted both
Eldon's decisions and In the opinions OF Chief Justice
Spencer and Judge Plat in the great Of Jsques
The Methodist Church, in 18th Johnson's Reports
When such a settlement ~ dny made and is in accord
with the law, must be- sustained or IL detective
aud valid ante Bupta agreement, such marriage ar
cies csn be proven. II will be rectifed, orr one
substituted by the conr But the settlement here, is