Cowman v. Hall , 3 G. & J. 398 ( 1831 )

Buchanan, Uh. J.,

delivered the opinion of the court.

Under the agreement of the 14th January, 1789, between Richard Hall, the deceased husband of the complainant, Sarah Hall, and his mother, Martha Hall, by which, for the consideration expressed, he contracted to convey to her in fee, or to such of her younger children, his brothers or sisters in fee, as she should direct, the lands therein mentioned, he became in equity a trustee for his mother, of all the lands embraced by that agreement. And the circumstance of that agreement, and the three deeds of the 13th July, 1807, from him and his mother Martha, for the same lands, two of them to Edward Hall, and the other to Thomas W. Hall, and John Hall his brothers, and the children of Martha, all standing recoi’ded on the same day, and immediately following each other in the same book, together with the deeds being to three of the younger children, for whose benefit the agreement was entered into, and their mother having joined in the deeds, to whom, or to whose appointment the lands were contracted to be conveyed, shows satisfactorily, that Martha Hall had complied with the terms of the agreement on her part, and entitled herself to a compliance on the part of Richard Hall, and that the deeds were made in pursuance of that contract. For what Other purpose could the agreement have been recorded with the deeds, (not being an instrument required by law to be recorded,} than to show the inducement to the deeds, and that it had been complied with ? And the additional .fact appearing in evidence, that the lands covered by the agreement of the 14th January, 1789, were from the time of the execution of that instrument in the possession of Martha Hall, and never from that day in the possession of Richard Hall, is worthy of notice, and assists in leading to the conclusion, that she had performed all that Was required of her to be performed, and had thereby entitled herself to a conveyance, in pursuance of the agreement, whenever she might choose to require it. Or why was she permitted to remain in the undisturbed possession and enjoyment of the premises ? which is not accounted for in any other way, and as far as appears from this record, can only be accounted for on the ground that she was entitled to the beneficial interest. The lands were by the contract, to be conveyed to herself, or to such of her younger children, sons or daughters, as she should from timo to time direct; and her uniting in the deeds to her three younger sons was a good appointment, and equivalent to a direction to Richard Hall to convey to them, at a time selected by herself, and which by the agreement she had a right to select, and when she thought proper to give them the property, and to cause the conveyances to be made. And it may be, that the deeds were not executed sooner, because she did not deem it proper or expedient to have it sooner done.

A widow is not dowable in equity of lands, which were held by her husband in the character of a trustee; and as the complainant seeks to be endowed of lands, embraced by the agreement between her husband and his mother Martha Hall, of the 14th January, 1789, of which he, on that day became a trustee for his mother, her right to recover must depend on the time of their marriage ; and be determined according to the fact of the marriage having taken place, before, or subsequent to the execution of that instrument, as shown in the record.

In her bill, she alleges tha1: it took place “ on or about the year seventeen hundred and” blank, and calls upon the defendant to answer, whether, “ she was not married as stated.” Not confining the interrogatory to the fact of marriage alone, but requiring a response, as well in relation to the time, as to the fact of marriage. And the answer setting out the agreement of the 14th January, 1789, which is stated to have been faithfully performed, denies the complainant’s title to dower, and alleges that the marriage took place some time after that agreement was executed, that is, sometime after the 14th January, 1789, which allegation, both as respects the fact, and time of the marriage, is responsive to the bill, and is not contradicted by a single witness in the cause. On the contrary, the evidence of the only two witnesses who gave testimony upon that subject, so far from contradicting, is perfectly consistent with the answer, and goes to support it. They swear that they were married themselves on the 18th of December, 1788, and that the complainant, and her deceased husband, Richard Hall, .were married about one month afterwards, reaching a few days beyond the 14th January, 1789, the date of the agreement, when Richard Had stood seized of the lands, in which she claims to be entitled to dower, as trustee for his mother. But the answer alleging the marriage to have been after the date of the agreement, does not require the aid of that testimony to support it; but being responsive to the bill, and not contradicted, or shaken by any other evidence, must stand, as conclusive of the fact it asserts, that is, that the marriage was after the execution of the agreement of the 14th January, 1789. We are consequently constrained to say, that the eompláinant is not entitled to dower, in any of the lands embraced by that instrument, and of which her deceased husband, was at the time of their marriage, and afterwards seized’ only as trustee. But the land described in the deed, from Martha Hall and Richard Hall, to Edward Hall,^ marked exhibit B, as “part of a tract of land called Wade’s Increase,” containing about twenty-five acres, not being embraced in the agreement of the 14th January, 1789, and of which Richard Hall was beneficially seized, during his coverture with the complainant, and not as trustee, she is entitled to dower in that land.

The decree of the chancellor therefore, must be reversed with costs, so far as it relates to the lands embraced by the agreement of the 14th January, 1789, between Richard Hall and Martha Hall; and the complainant will be decreed to have her dower, in the other parcel of land described in the exhibit B, as a part of a tract of land called Wade’s Increase.”

With respect to the case of Glenn, adm’r of Thomas W. Hall, and Julius Hall vs. Sarah Hall, which has been submitted to us on the same pleadings and evidence, the whole of the land in which dower is claimed, being embraced by the agreement between Richard Hall and Martha Hall, of the 14th January, 1789, and consequently, held by Richard Hall, at the time of his marriage to the defendant in the appeal, and afterwards, as a trustee only for his mother, the defendant is not entitled to dower in any part of it, and the decree of the chancellor must be reversed, and the bill dismissed with costs.

Decree. It was thereupon adjudged, &c. by the Court of Appeals, that the decree of the chancellor in the case of Joseph E. Cowman, et al. vs. Sarah Hall, be reversed, with costs to the appellants in this court, and the Court of Chancery. But it appearing to this court, that the appellee is entitled to dower in the land described in exhibit B, as part of a tract of land called Wade’s Increase, it was therefore, further adjudged, ordered, and decreed, that the record in this case, be remanded to the Chancery Court, and that the said court pass such order, and decree therein, as may be necessary to assign dower to the appellee in the said land, with such rents and profits accruing out of said land as she may be entitled to.

DECREE REVERSED.