Whitall v. Clark , 2 Edw. Ch. 149 ( 1833 )

The Vice Chancellor:

I am asked to give effect to an appointment by a married woman, in favour of her husband, executed by her under a power contained in a marriage settlement. The only question is, whether the court is bound to carry the appointment into effect, by decreeing the money to be made over to the husband ? There was formerly some doubt in the case.

When such cases first came before Lord Thurlow, he hesitated ; but upon an examination of authorities, he decided that although the deed might be direct to the husband, yet still the court would have to give effect to it. And since his time, such a deed has been declared to be valid: unless undue influence could appear. All the court can do is to watch such an act with jealousy; and therefore, the utmost I can do is to throw around the transaction a scrutinizing guard,, to ascertain if the deed has been fairly and voluntarily executed. Let the decree direct a reference to a master to examine the wife apart from the husband to ascertain, under what circumstances she executed the deed; as also whether she still consents to its being carried into effect. The master will take care to inform the wife of her rights and to notify her that she may still dissent and the court will protect them if she requires it. If the master finds that the deed was duly executed and that the wife freely consents, then he may proceed to state an account of the amount in the hands of the trustees and upon the coming in and confirmation of the master’s report the decree may be that the trustees pay over the monies to the husband, after deducting the charges and claims set up by them.

JV. The following was the form of the decree, as settled by the court.

“ It is ordered, adjudged and decreed, that it be referred to “ Frederick De Peyster, Esquire, one of the masters of this “ Court, to take proof as to the due execution of the deed or “ instrument of appointment mentioned in the pleadings in “ this cause as having been executed by the said Elizabeth “ Whitall (late Elizabeth Me. Kie) in favour of her husband, “James D. W. Whitall; and whether at the time of executing the same, she was of full age and not under any restraint; “.and that the said master ascertain, upon a private examina- “ tion of the said Elizabeth apart from her said Husband, whe- “ ther she executed the said instrument of appointment with- •“ out any fear, threats or compulsion of her said husband, “ and whether she the said Elizabeth is still willing and freely “ consents that the money, in the hands of the defendants, as “ her trustees, be paid over to her said husband according to “the said instrument. The said master first explaining to “ her, the said Elizabeth, the right which she has under and “ and by virtue of the ante-nuptial agreement to have the said “ fund remain in the hands of trustees or invested by order of “ this Court for her the said Elizabeth’s sole and separate use. “ And it is further ordered, adjudged and decreed, that if the “said master shall find the said deed of appointment to be “ well executed and that she the said Elizabeth consents as “ aforesaid, that then he proceed to take and state an account “ between the said Elizabeth and the said defendants of the “ trust fund in the hands of the said defendants ; and that the “ said master, in taking such account, make all proper allow- “ anees to the said defendants for their legal commissions and “ for the sums advanced by them to the said Elizabeth and “ to her said husband out of or upon the credit of the said “ fund. And upon the coming in and confirmation of the said “ report, the said defendants pay to the said James D. W. “ Whitall on his own receipt such balance as shall be found “ due as aforesaid to the said Elizabeth, less the amount of “ the costs of this suit as hereinafter mentioned. And upon “ the refusal so to do that execution issue therefor. And it “ is further ordered, adjudged and decreed that the said de- “ fendants be, upon payment of the same to the said James « j)_ W. Whitall, discharged from their trust in the premises. “ And it is further ordered, adjudged and decreed, that out “ of the said fund, the costs and charges of the respective so- “ licitofs for the complainants and defendants to be taxed be “ first paid by the said defendants.”