Edward Nalle & Co. v. Lively , 15 Fla. 130 ( 1875 )

FRASER, J.,

delivered the opinion of the court.

On and previous to the 15th of April, 1850, Richard Hayward was the owner in fee simple of a lot .of ground in the ©ity of Tallahassee, -at which time ho was a man of large means, entirely solvent, and abundantly able to make the conveyance next mentioned, without affecting his solvency ©r impairing the claim of any creditor, a.nd on that day he executed a writing in the form of a deed, without witnesses, purporting to convey to Robert S. Hayward and Thomas H. Austin the said land, ‘‘in trust for the only use, benefit and behoof of Harriet W. Hayward, wife of the said party of the first part, during and for the term of her natural life, and to such further use as the said Harriet W. Hayward may, by her last will and testament, or in any other manner, appoint, to take effect after her decease,” with the covenant that the land conveyed should not be “ subject to or for any of the debts, contracts or engagements of her husband, and that the same shall remain and continue in the possession and under the control of the said Harriet W. Hayward, and be subject to the control and direction of no other person whomsoever.”

It is recited in this writing that in the • years 1844 and 1845, Harriet, the wife, in order to enable her husband to pay certain debts, released her right of dower in sundry tracts and lots of land, sold by her husband for that purpose. This paper, expressed to be in consideration of such relinquishment of dower, was delivered by said Bichard to said Harriet, April 15th, 1850, but was not witnessed and admitted to record until September 13, 1865, at which last date Bichard had become insolvent. The paper was then subscribed by two witnesses, proved and recorded. It is agreed by the parties that the recitals in this deed, with respect to the relinquishment by the said Harriet of her dower in sundry lots and parcels of land therein described, are true.

Bobert S. Hayward, one of the trustees, died in or about 1852.

August 9th, 1866, in consideration of a debt of $4,100, due from Bichard to Elizabeth G. Hogue, wife of William S. Hogue, and to secure its payment, Bichard and Harriet, his wife, executed their mortgage upon the south half of the lot mentioned.

Bichard died in January, 1867.

May 20th, 1868, Hogue and wife assigned the mortgage to Mathew Lively, and on the same day Harriet, being then a widow, joined with her surviving trustee, Austin, in a deed to Lively for the south half of the lot in question, being the part covered by the mortgage.

This last deed' purports to be in execution of trie power contained in the deed of trust. '■ -: ■

It is agreed by the parties that the matter set up-in .the answers of the defendants, or either of them, responsive to or explanatory of the bill of complaint, are true, unless overcome by proofs according to the rule of 'evidence in chancery. " ■ ’

The complainants charge in their bill that - the consideration of the deed from Richard, in trust for his wife, was altogether voluntary, and that no money or other thing’ of value passed between the parties as the consideration therefor..

Mrs. Hayward answers that the deed of trust was not a mere voluntary deed, but for a valuable consideration, and sets forth the consideration-to have been her previous-relinquishment of her dower in certain lands, and was in fulfilment.of an agreement between her and her husband at flic time of such relinquishment; and she explains the particulars of the agreement then made between her and her husband. ;

Harriet, the widow, died December 17th, 1869, having first made her will, by which she devised to her granddaughter, Harriet Porte Hayward, the property conveyed by Richard to trustees for the uses mentioned in the deed of trust.

The complainants, judgment creditors of Richard, filed their bill in the Circuit Court of Leon county, to set. aside, amongst others, the foregoing conveyances, as fraudulent against them, and insisting that the lot in question and other lands not involved in this appeal, are liable to the payment of their judgment, which was rendered August 3, 1868, and on which execution was issued. and returned milla lona. .- '

The lot of land mentioned is all that is in question on this appeal, and the only parties interested are the administrator of Harriet W. Hayward, Mathew Lively, who claims the lot as purchaser in the manner -stated, and Harriet Forte Hayward, the devisee of Harriet W.

The court below made a decree dismissing complainants’ bill as to these defendants, from which decree the complainants appeal. *

The first question to be considered is, what is the effect of the deed of trust from Richard to Austin and Hayward, trustees for his wife ?

Complainants insist that this deed was a voluntary conveyance, without consideration, and therefore void as to creditors, and so charge in their bill of complaint. Mrs. Hayward answers that there was a 'valuable consideration, and states it to be, that in the years 1844 and 1845, she relinquished her dower in .certain other lands, upon the promise made her by her husband at the time that he would settle upon her other property, and the complainants have agreed, that this answer is true, if responsive to or explanatory of the bill, unless they should overpower it with other proof.

No evidence was taken in the cause. The question, therefore, is, whether this answer is responsive to of explanatory of the bill %

■ This response to the charges in the bill amounts to such a direct and absolute denial, that it should seem superfluous to attempt to prove by argument that it is responsive. One says there was no consideration ; the other responds there was a consideration, and explains particularly what that consideration was, the charge and the response, the assertion and denial, operating one directly against the other.

But it is urged that such a relinquishment is not a valuable consideration. That it is a valuable consideration, and will support a subsequeut settlement upon the wife, we have abundant authority. 4 Dessau., 227; 3 Paige, 440.

In Woodson vs. Pool, 19 Mo., 344, and one of the cases. relied on by complainants’ counsel, the court say, “ there can be no question but that a wife’s relinquishment of her dower is a sufficient consideration to support a suitable conveyance to her for such relinquishment,” and in that case the wife failed to sustain the conveyance to her only for want of proof of such consideration, for in such case it is necessary that the proof be clear.

In Wickes vs. Clark, 8 Paige, 163, it is said that “ in order to render these advances of the wife’s property a consideration for the subsequent settlement of the husband’s property upon the wife, it should appear that there was either an agreement between the husband and wife at the time the advances were made to secure her by settlement, and such an agreement as would be obligatory upon him to perform, <or that her parting with her property, or incumbering it for .'her husband’s benefit, was intended to serve as a consideration for a settlement to be afterwards made by him, and .that the deed of settlement, when' executed, had reference thereto; in short, that there was some connection between the previous advances and the subsequent deed.”

In the present- ease, it appears that Mrs. Hayward did give a valuable consideration; that there was an agreement between her and her husband, at the time she relinquished lier dower, obligatory on him to' perform; that the deed of trust was executed in reference thereto, and it does not appear that the' one was not a fair equivalent of the other. The deed of trust, therefore, is valid against creditors.

It is evident, that as the deed of trust gave to Mrs. Hayward only a life estate, with a power of appointment, a trust resulted of the residue to the grantor, Richard Hayward, liable to be divested upon the appointment being made in accordance with the power.

The mortgage executed by Hayward and wife to Hogue, being in direct violation of the terms of the trust, is void.

Mrs. Hayward could not encumber this estate for the debts of her husband; it is expressly prohibited by the terms of the trust deed, aud as the mortgage was of no validity, the'assignment thereof to Lively is- of no avail to him

The attempted execution of the power by Mrs. Hayward and her trustee by the deed of May 20, 1868, to Lively, is also inoperative. A power,'directed to be executed by will, cannot be executed by deed, and this trust expresses clearly that the execution must be by a writing in its nature testamentary, or such as shall take effect after the decease of Mrs. Haywards A deed takes effect in presentí, a will can' only take effect after the decease of the testator. In Sugden on Powers, Vol. 1, (marg.) 256, it is clearly laid down, upon abundant authority, that a power to be executed by will cannot be executed by any act to take effect in the lifetime of the donee of the power, and which we understand to be the settled doctrine.

It will, therefore, be seen, that while the complainants cannot make the lot in question liable to the payment" of their judgment, Lively acquired no title by virtue of the mortgage, nor by the deed of Mrs. Hayward to him, and Mrs. Hayward having executed the appointment by will, the resulting trust to Richard Hayward and his heirs was thereby divested.

It is adjudged that the decree of the court below, so far as it dismisses the complainants’ bill of complaint as to the parties therein named, be affirmed, and that in so far as said decree in any manner affects the rights of property of Harriet Porte Hayward, that it be set aside.

The following petition for re-hearing was filed by counsel for appellants:

The appellants, by their counsel, R. B. Hilton, apply for a re-hearing in this cause, and for reasons therefor set forth the following

It is respectfully submitted' that the court over-estimated the force and effect of Mrs¡ .Hayward’s answer, in connection with the agreement entered into' by the counsel of the parties. That agreement was intended to obviate the necessity of taking testimony in reference to all points upon which the parties concurred as to the facts: such as, that Mrs. Iiayward did, in fact, relinquish her right of dower in certain lands of her husband in 18M; that her husband was unembarrassed in 1850, at the date when the deed of settlement was drafted, &c., &c. As to other facts or allegations, the intention of the parties, in entering into the agreement, was to leave those facts and allegations to be determined under the pleadings and proofs in the Case, in accordance with the “ rules of evidence in courts of chancery.” It was not imagined by the counsel of the plaintiffs, that in entering into that agreement that he was consenting to give to the answers of the defendants, or either of them, any other force and effect than that to which they were entitled under the rules of chancery. Nothing more than this was contended for by the counsel of the defendants, either in the court below or in the Supreme Court. Mr. Peeler, the counsel who drafted the agreement, at the argument below expressly disclaimed any purpose to give to the terms of the agreement any other signification than this. It is very respectfully urged that it was an inadvertence on the part of the Judges of the Supreme Court to have made the answer of Mrs. Hayward conclusive in defeating the claims of the plaintiffs; and-that the court thus gave to it a degree of weight to which it was not entitled, “ according to the rules of evidence in chancery.”

In an allegation- of “ fraud ” in a bill in chancery, an answer denying fraud generally amounts to nothing. The ■question must be determined by the facts and circumstances and law of the case.

Mrs. Hayward’s answer alleges a “ promise ” of her husband at the time of her relinquishment of dower to make a settlement upon her.1 The bill does not deny such a “ promise it says nothing about a “ promise,” one way or the •other. What, therefore, she says about this alleged “ promise ” is new matter on her part, in no wise responsive to anything in the bill. It was something of which, if true, in order to avail herself it was incumbent upon her to prove. Especially was this so, inasmuch as the very recitals of her deed by their silence on this point, while so full on others, gave contradiction to the allegation of a “ promise.”

It is further submitted, with great deference, that the decision of the court in "Woodson vs. Pool, 19 Mo., 341, was directly in conflict with that announced in the opinion of this court. The head note m the Missouri case is as follows : ( .

“ A conveyance for the benefit of a wife in consideration of dower, previously relinquished by her, is voluntary as to existing creditors.”

(The word “ previously ” is italicised in the report.)

The head note, in the case at bar, is as follows :

“ A relinquishment of dower by a wife, for the benefit of her husband, is a sufficient consideration for a •subsequent settlement upon her by him.”

The Missouri court say, in the course of their opinion, “ if the right to dower has already been assigned, a conveyance in consideration of such an act previously done would be voluntary as to existing creditors.”

It will be remembered that Mrs. Hayward’s assignment of dower in her husband’s lands was in 1844, while the settlement made on her by her husband, in (alleged) consideration thereof, was not executed and recorded until 1865, twenty-one years subsequent; and that her husband, at the date of its execution, was utterly and overwhelmingly bankrupt.

It does not appear from any portion of the opinion of the court read in this case, that they considered the effect of this very protracted interval which elapsed between the • date of the two transactions.

The vital question in the case, in the view taken of it by counsel for complainants, was, whether a husband, after holding himself out for twenty-one years as the owner of valuable property, and obtaining credit as such owner; could then defeat the claims of his creditors by conveying the property to his wife for and upon a consideration which had passed and been executed twenty-one years previous; thus providing for his wife, children and himself, at the expense of his creditors and their wives and their children ? Upon this point, (necessary, it is submitted, to a decision of the case,) the court (doubtless inadvertently,) omitted to pass, and that “ omission ” is assigned as one of the grounds upon which a rehearing is humbly prayed.

To hold such conveyances and family settlements valid, whether based upon a “ promise ” or not, (made twenty-one years before) it is submitted, would be opening the very flood gates of fraud.

It will be observed, by reference to the opinion of Mr. Justice Fraser, that he takes no notice of the elementary authorities, Atherley and Lomax, cited by appellants’ counsel, nor of the cases in the Virginia reports, (Grattan,) the Kentucky reports, (Bush especially,) the Iowa and Pennsylvania reports, the South Carolina cases in McMullan’s reports, in Rice’s reports, and in McCord, all cited in appellants’ brief; and all inconsistent, as petitioner humbly believes, with the conclusion of this court, as to the validity of Hayward’s settlement on his wife when brought in conflict with the rights of his creditors. The petitioner feels bound to believe that a careful examination of these authorities and cases-will bring the court to a different conclusion.

The decision of this court is, that all the property in controversey, embracing the lots on which were erected two stores, belongs to Harriet Forte Hayward, as devisee of her grandmother, Harriet W. Hayward. Mrs. Hayward’s will bears date some time anterior to her conveyance to Lively. By that conveyance she sold or attempted to sell to Lively one-half of this property. As to that half, it is submitted that the deed to Lively was a recovocation of the will, and that as to that half, Mrs. Hayward died intestate. She, therefore, as to that not having executed the power of appointment, given to her by the terms of her husband’s settlement, it falls back into and becomes a part of her husband’s estate, and is subject to- the judgment of the complainants. As the conclusion arrived at by this court, in awarding all the- property to Mrs. Hayward’s devisee is one not mooted in the court below, or in the argument of counsel on either side in this court, it is respectfully prayed that an opportunity may be given for argument upon the questions involved in that conclusion'.

All of which is respectfully submitted.

On which petition,

Randall, C. J.,

delivered the opinion of the court as follows:

The counsel for appellants presents a petition for a rehearing in this case and submits that “ the court over-estimated the force and effect of Mrs. Hayward’s answer in connection with the agreement entered into by counsel for the parties. That the agreement was intended to obviate the necessity of taking testimony in reference to all points upon which the parties concurred as to the- facts,” and as to other matters and allegations, the intention of counsel was “ to leave them to' be determined under the pleadings and proofs in the case in accordance with the rules of evidence in courts of chancery.” And it is urgecj’that it was an inadvertence on the part of the justices of this court to have made the answer, of Mrs. Hayward conclusive in defeating the claims of the plaintiffs, and that the court gave to it a degree of weight to which it was not entitled according to the rules of evidence in chancery. The counsel further says : “ To an allegation of fraud in a bill in chancery, an answer denying fraud generally, amounts to nothing. The question must be determined by the facts cmid cwownstanoes and law of the case. Mrs. Hayward’s answer alleges a ‘promise ’ of her husband at the time of her relinquishment of dower to make a settlement upon her. The bill does not deny such a ‘ promise; ’ it says nothing about a promise one way or the other ; what, therefore, she says about this alleged promise, is new matter on her part in no wise responsive to anything in the bill. It was something of which, if true, in order to avail herself, it was incumbent upon her to prove.”

I. The agreement referred to is a stipulation signed by all the counsel.in the case, and which, with -the bill, answers and exhibits and copies of the conveyances referred to therein, were the only evidence submitted to the Circuit Court upon which the decree was made. This agreement, after enumerating sundry facts agreed upon, concludes thus : “ And it is further understood and agreed that nothing herein contained is to preclude the defendants from insisting upon any other matter of defence set up in either of the answers herein, except in so far as is inconsistent with this agreement, and that the matter set up in the answers of the defendants, or either of them, responswe to or explanatory of, or in admission of the allegations of the bill of complaint, not inconsistent with this agreement and the admissions herein made, are true, unless overeóme by proofs according to the rule of evidence in courts of chancery with respect to the effect to be given to an answer.”

Now, it seemed to the Circuit Court that the answer of Mrs; Hayward, in so far as it alleged a valid consideration for the conveyance to her by her husband of the real estate mentioned, was directly “ responsive to and explanatory of the allegations of the bill of complaint,” and therefore that her answer as to the validity of the conveyance and the' absence of fraud in the very transaction which the bill alleged to be fraudulent.

This court also examined this feature of the case and came to the same conclusion, that that part of the answer of. Mrs. Hayward was responsive to the allegation of fraud contained in the bill.

The bill alleges that the conveyance by Hayward to the trustees for Mrs. Hayward’s use was voluntary, no real con-' sideration having passed, that it was never delivered, that it was kept secret and in the possession of Richard Hayward from 1850 to 1865, and that its intent and purpose was.“illegally to hinder, delay and thwart the’creditors ” of Eichard Hayward.

Her answer, not only denying the fraud in express terms, but alleging facts which of themselves nullity the imputation -of fraud, it seemed to us, was the subject of the stipulation of counsel, not alone as to its denials, but as to its allegations of matters of fact constituting a part of the transaction, and therefore necessarily “responsive to. and explanatory of the allegations in the bill.” I understood, as I now understand, that the purpose of the stipulation was to avoid the trouble and expense of taking testimony, and to present the facts in issue to the court, not only such facts as to which there was no disagreement between the parties, but such other matters as were responsive to the allegations of the bill or explanatory thereof; all which are admitted to be “ true, unless overcome by proofs according to the rules of evidence in courts of chancery with respect to the effect to be given to an answer.” ¥e conceived that a statement in the bill, that a transaction was fraudulent, and that it occurred under certain circumstances tending 'to show it to be so, was directly responded to and explained by a recital of ■all the eircirmstances under which the identical, transaction occurred, and which tended to disprove the fra/ud alleged, and that the stipulation that such counter allegations should be taken as true, unless disproved, required-of the party holding the affirmative of the case to meet the counter allegations by something more than a reiteration of the charge with no rebutting proofs.

The party, by the stipulation, undertook to disprove all the allegations in the answer which were responsive to the charge that the conveyance was voliintary, without consideration and fraudulent, or to stand by the effect of the answer if he failed to disprove it.

The. inquiry of the bill is as to the validity of the consideration of the conveyance. The answer discloses the entire consideration. It refers to no other transaction than that which was the direct subject of the inquiry.

The rule is explained in a case before Lord Chancellor Cowper in 1807, reported in Gilbert’s Law of Evidence, p. 46. It was the case of a bill by creditors against an executor for an account of the personal estate. “ The executor stated in his answer that the testator left 1,100 pounds in his hands, and that afterwards, on a settlement with the testator, .he gave his bond for 1,000 pounds, and the other 100 pounds was given him by the testator as a gift for his care and trouble. It was resolved by the court that the defendant must make out by proof what was insisted on by way of avoidance. But if the admission and advoidance had consisted in the single fact that the testator had given him the 100 pounds in the first instance, the whole must be allowed, unless disproved.”

The gist of the rule is, that if the answer refer to and explain the particular transaction or consideration to be inquired of, it will stand until disproved.

Chancellor J. Savage, in Murray vs. Blatchford, 1 Wend., 618, says: “ The main question in this case is the question of fraud. The bill charges that the defendants acted fraudulently and in bad faith, and in relation to the defendant Murray, several facts are charged as evidence of the fraud. Among these are attempts to delay a decision of the cause, by appeals to this court. He twice appealed, and at each time suffered the appeal to be dismissed. This is admitted by Murray, but he declares that the appeals were brought bona fide, with an intention to have them argued and decided by this court, but that his counsel a.dvised to the course which was adopted. The counsel, after the appeals brought, were of opinion that after certain other steps should have been taken in the cause, the errors which they were advised existed would be more apparent. The answer is given under oath, is responsive to the bill, and is not contradicted. It must, therefore, be taken to be true, and, if true, rebuts the idea of fraud.” And Judge Story has this language : “ The plaintiff calls upon the defendant to answer an allegation of fact [of fraud] which he makes; and thereby he admits the answer to be evidence of that fact. * * * Not only is such an answer proof in favor of the defendant as to the matter of fact, of which the bill seeks a disclosure from him, but it is conclusive in his favor, unless it is overcome by satisfactory testimony.” (Story Eq. Jur., § 1528, and citations.)

The counsel for appellants says that the bill says nothing about the .“ promise ” made at the time of the relinquishment of dower to convey or to make a settlement upon her, and that, therefore, what the answer says about a “promise ” is new matter on her part, and ,in no wise- responsive to anything in the bill.

We have duly considered this suggestion, but as the inquiry of the bill is to the question of fraud in the whole 'transaction, the charge being that the conveyance was voluntary and without real consideration, we cannot see that it is otherwise than directly responsive to the charge, and in the language of Chancellor J. Savage, “ rebuts the idea of fraud.” Nor do we discover that her allegation gives either a direct or indirect contradiction to the recitals in the deed of trust '; it is cumulative and consistent with the recitals.

II. Counsel for appellants, in his petition, submits that the opinion of the court in this case is directly in conflict with that in Woodson vs. Pool, 19 Mo., 341; and quotes the head note of the opinion'in each case to show the discrepancy.

But we must be pardoned for suggesting that the head note in this case, as originally written,- may not' give the entire scope of the opinion, and it may be necessary to make some verbal change in it, and we must further submit that on examination of the opinion in this case, it will not be found that there is anything in it in conflict with that in Woodson vs. Pool. We dealt with this case as we found it in the record, and the' Supreme Court-of Missouri decided that case upon the record before it.

The circumstances of that case were widely different from those in the case at bar. In that case there was no contemplation of a. subsequent settlement at the time of the relinquishment of the dower, but it was evident that the recital of the former relinquishment as a consideration of the conveyance to his wife was a mere attempt to save the property of the husband from his creditors.

Counsel for appellants, in his brief, says : “It is not denied that a husband may make a valid settlement upon his wife, in consideration of a portion coming to her, agreed to be paid to him,'or of her relinquishing any 'interest in his property, even though that interest be contingent or inchoate, as the right of dower for instance. But to support such a settlement against creditors, whose debts' accrued prior to it, the court will require every reasonable proof that the portion was paid, or the relinquishment made in consideration of the making of the settlement.” (Citing Atherley on Mar. Settlements, 83;

The conveyance in the case at bar was not merely a “voluntary settlement,” but was -made for a valuable consideration, in-pursuance of an agreement made at the time the consideration wras received; was made in good faith, and without notice of any fraudulent intent of the grantor.

This case differs also from the circumstances of that of the Bank vs. Mitchell, Rice’s Eq. R., 389, cited by counsel. The conveyance in that case was made in consideration of an agreement which was, by express statute, void as to creditors.’ The court say that they were inclined-to support the conveyance, but that to do so would be, in effect, to write “ repealed ” on the statute.

The other cases referred to by counsel, with the remark that the justice who delivered the opinion failed to take no-' tice of them, and that the opinion is inconsistent with them, were examined before the opinion was written, and have been read since with reference to the petition for rehearing, but we fail to see that they are very like the present case, or that the principles announced in them would lead us to a different conclusion. - -

Lord Chancellor Hardwicke, in Ward vs. Shallet, 2 Ves. Sen. 16, says: “ To be sure' it is the duty of assignées under the commission to endeavor to increase the estate for the benefit of creditors, and to inquire into any family transaction, especially between husband and wife, which is liable to most suspicion. But the court must not carry it so far as to set aside an act for a valuable consideration, and if this was to prevail, it is one of the hardest demands I ever saw.”

(The case was one in which the wife had a contingent interest in a bond given by the husband, which she relinquished, in consideration of which a settlement was made upon her and her children.)

Mr. Atherley says : “ It may perhaps be thought that a husband and wife cannot contract with each other, and/ consequently, that a post-nuptial settlement, which arises out of an agreement between hnsband and wife, must be purely voluntary. We shall find, however, that this is not the case, but that settlements, resting on such agreements, have frequently been held good. Nor have’they been hastily supported. In the case of Lady Arundel vs. Phipps, (10 Ves., 118,) Lord Eldon expressly adverted to it, and clearly held [ that a husband and wife, after marriage, could contract for a 'bona fide and valuable consideration for a transfer of property from the husband to' the wife, or to trustees for her, and that the doctrine was so, both in equity and at law.’ And the point also appears to have been adverted to by Lord Hale, in the case of Clark vs. Nettleship, 2 Lev., 149. * * * In inquiring into the validity of post-nuptial settlements, the true and.only point of inquiry, I conceive, is, whether the settler has received a fair and reasonable consideration for the thing settled, so as to repel the ■presumption of fraud.”' (Atherley on Mar. Sett., 161.)

The case of Reade vs. Livingston, 8 Johns. Ch., 481, was upon a settlement made in pursuance of a parol agreement made with the wife’s father in contemplation of marriage, and the settler was indebted at the time of the conveyance, the marriage having taken place in 1791 and the settlement in 1805, of property of great value. The chancellor held the settlement to have been voluntary as to creditors, and the whole discussion of the opinion is upon the subject of voluntary settlement; but the chancellor takes occasion to endorse the treatise of Mr. Atherley in the strongest terms, and puts the case upon this point, stated by Atherley, that a “settlement after marriage cannot rest its validity as against creditors, on a mere parol agreement before marriage.”

In the case of Lewis vs. Caperton, 8 Gratt., 150, cited by petitioner, there was no proof whatever of an agreement for a settlement in consideration of the relinquishment of dower, but, as the court remarks, only proof of casual conversations between the wife and other persons; and the court emphasizes the fact, that there was no such agreement, and the relinquishment was purely voluntary.

And W. and M. College vs. Powell, 12 Gratt., 385, says, distinctly, that a post-nuptial settlement, in favor of a wife, made in pursuance of a fair contract for a valuable consideration, will be held good, is a doctrine supported by abundant authority; and although it may have been made under such circumstances that it must be pronounced fraudulent and void as to the creditors of the husband, yet, if the wife has relinquished her interest in property on faith of such settlement, it will be held good to the extent of a just compensation for the interest which she may have parted with, and this, though the settlement may have been made subsequent to the relinquishment.

"We cannot close this part of the case in better language than that used by the learned Justice in Latimer vs. Glenn, 2 Bush, (Ky.,) p. 544, as to the character of Mrs. Hayward’s title, and with our construction of the stipulation as to the effect of the answer' that it stands .upon the record as true : • “ Her equity,” says the court, “ is as elevated and pure and sacred as that of any creditor of her husband; her conduct is free from any fraud or overreaching, or concealment of any character ; nor does it manifest any desire to screen the property of a failing hiisband from the just demands of his creditors, but only an honest effort to secure that which she regarded as her own, and which had been frequently accorded to her in the most prosperous days of her husband, and for which she had paid an ample consideration.”

III. The omission of the court to allude in the opinion to the fact that the conveyance was not made until twenty-one years after the consideration (the release of dower) had transpired, is made one of the grounds of the application for a rehearing. The dower was released ip 1844, and it is said the deed was not executed and recorded until 1865. This statement, standing alone and unqualified, is a very strong argument in favor of the petitioner. But is this the whole story ?

The'facts are that in 1844, Mi\ Haywmrd, being embarrassed by debts, induced his wife to relinquish her dower in valuable property by agreeing to make at some subsequent period a conveyance to her of other property. He could not do-it at that time on account of his embarrassment. In April, 1850, he made and signed the deed of the Tallahassee lot purporting to convey it to trustees' for the use of Mrs. Hayward for life, but this deed was not then effective because not witnessed. The bill charges that Hayward kept this paper in his possession secretly from 1850 to 1865. Mrs, Hayward it was delivered to her at its date Mr. ward,,he stating to her that it was executed fully, and that he had thereby complied with his promise to her when she relinguished the dower, that she believed the deed was fully executed, there was nothing secret about it, that the property was afterwards treated and spoken of publicly and privately as her property, and she kept the deed among her own papers.

Mr. Austin, one of the trustees, says he was made aware of the existence of the deed soon afterwards, and was informed that all was done that was necessary to make it complete. At this time the grantor, Mr. Hayward, was in good circumstances. Will it be pretended that if this deed had been fully executed at that time, as Mrs. Hayward believed it ,was, it was liable to the-imputation of fraud ?

Subsequently Mr. Hayward moved to Louisiana with property and means valued at $130,000 or more. During the war. he seems to have lost his property, like many others, and returned to Florida in 1865. In September of that year, the deed to Mrs. II. is presented for record, and was then perfected and recorded.- During all this time Mrs. II. says she had possession of the deed, believing it to be good. She, if anybody, had been deceived during all those years, being made to believe that she had á good title to a town lot in Tallahassee. If so, for what purpose was the fraud undertaken, and to what end was it sought to be carried ? There was'no fraud upon these creditors in 1850 by the, making of this deed,- for they were not creditors, but if fraud at all, Mrs. Hayward was the victim, and her equities dated from 1844, while the complainants did not become creditors until some twelve or fifteen years afterwards. In a contest between these complainants, as creditors, and Mrs. Hayward, as a prior creditor, who had been led to believe she was secured when she was not entirely so, whose scale must kick the beam ?

Any third party holding a document like the paper she held, might have compelled a conveyance at any' moment; and wore her rights less sacred, or less valuable than those of any other, becausfe she ^ was a married woman and did not distrust her husband ?

“ To authorize the court to interfere with, (say the court in Seward vs. Jackson, 8 Cowen, 406, and in Wickes vs. Clarke, 8 Paige, 165,) and declare a voluntary settlement void, even as to creditors whose debts existed when the deed was made, intentional fraud must appear, and prior indebtedness is' but a badge or argument of fraud, which may he explained or repelled by circumstances.” And how much stronger must this case stand in favor of Mrs. Hayward, when the debts had no existence at the time the deed was delivered to her and she -was made to believe she had what she was entitled to; when the conveyance was not merely voluntary, but upon a valuable consideration, and where' there was no room for suspicion of bad faith.

The deed to her trustees was drawn up and signed in 1850, It was not completed until 1865, for the reasons stated, and however strong the suspicion arising out of the non-completion of it, it is: yet but a suspicion, which has been, in our judgment, entirely removed by a consideration of all the circumstances of the case.

IV. Counsel for complainants further submits that Mrs. Hayward, having made her-will, and thereby exercised the power of appointment, by devising the entire property in Tallahassee to her granddaughter, and after making the will, having executed a deed to Mr. Lively of one-half the property, this deed operated as a revocation of the will as to this half; and, therefore, as Lively’s deed was not a proper exercise of the power of appointment and conveyed no in. terest, which survives Mrs. Hayward as to this half, it falls back into the estate of Richard Hayward, and is subject to the complainants’ judgment. If this conclusion be 'correct, the plaintiffs have hut to sell this-half upon their execution, and they do not need the aid of a court of equity. But on. the other hand, if the deed to Lively is void as an execution. of the power of appointment, it is equally inoperative as a revocation of the will. If it was a good revocation of the will, it is because it otherwise disposes of the estate by a valid appointment. In either event it does not fall back to the estate of Richard Hayward.

I have not been able to conclude that a rehearing should be granted to the petitioners, the complainants in the case; and I am supported in this by the judgment of the Justice, who has come to this bench in the place of Mr. Justice Fra.ser, resigned, (who prepared the original opinion,) who has examined the case with care with reference to this petition.

It is therefore ordered that the petition of the appellants be and the same is hereby refused.

A petition is presented also by counsel for Lively, one of the defendants in the case, praying a modification of the judgment and of the opinion, so far as it affects his interests in the particulars specified in his petition. Without further remark upon the merits of the petition, it is suggested that there may have been some misapprehension as to the judgment proper to be given in regard to the respective interests of Mr. Lively and Harriet Forte Flay ward, the infant defendant, and considering the recent change in the constitution of this court, we have determined that counsel may be heard further in that behalf, after due notice to the guardian ad litem of said infant.

M. D. Papy, Esq., counsel for M. Lively, filed the following petition for rehearing:

Counsel for M. Lively respectfully petitions the honorable court for a review of so much of the opinion pronounced in this case as declares the views of the court in regard to the relative rights of M. Lively and the grandchild of Mrs. Hayward 'in that portion of the lot which was conveyed to Lively, and for permission to argue the question as between these parties, who are joint defendants in the case.

The following grounds and reasons are offered for the consideration of the court:

"Counsel for M. Lively understands that the opinion of the court that the power in this case must be executed by will alone, is based upon certain words on the deed, viz.: “ to take effect after her decease,” and that the court understood these words to apply ifco the instrument by which the power is to be executed, instead of the estate or property or use upon which the power was to act. With all due deference to the court, and as this view of the subject was not advanced in argument by counsel at the bar, counsel for Livelyjavails himself of the privilege of directing the attention of the court to the precise terms of the deed and the significance which is due to the entire language employed. Premising that as a rule of construction full effect is to be given to every-word, if it can be done consistently with the rules of law, so as thereby the better to carry out the intention of the grantor, I quote from the “trust deed as follows : “ To have ’ and to hold, &c., &c., for the only use, benefit and behoof of Mrs. Hayward during and for the term of her natural life, and to such further use as she, the said Harriet Hayward, may, by her last will and testament, or in any other manner, appoint, to take effect after her decease.”

The words, “ to take effect after her decease,” in the judgment of counsel, clearly apply to the use or furtherance upon which the trustees -frere to hold, and not to the instrument by which the power was to be executed. If we transpose these words thus, it would leave no doubt: “ and to such further use, to take effect after her decease, as she, the said Hartiet Hayward, may, by her last will and testament, or in any other manner, appoint.”

That this was the intention of the trust deed, appears from two considerations:

Eirst. The use of the terms, “ or in any other manner,” clearly indicates that the whole range of means by-which a power could be executed was' to be within the discretion of the donee of. the power; and as in this case there is no restraint upon these terms, we must suppose it was the indention to give this discretion, because, if exercised by deed, it would be in all its consequences precisely what the latter derms would authorize, viz.: the use would by deed take effect after Mrs. Hayward’s death in the appointee, and could by no means take effect before her death.

Second. Eecause, whether the words “ to take effect after her death ” were in the deed or not, such would be the result any way, for the use, in the appointee of the power, could only take effect after Mrs. Hayward’s death, whether the power was executed by will or deed, and in neither event could it take effect before her death. The use, then, of the words, “to take effect after her death,” have no further operation than if they were not inserted, for neither in this nor in any other case of a gift for life, with power of appointment of the remainder, no matter what may be the form by which the power is executed, whether by deed or will, the use or the estate in the appointee could only take effect after the death of the donee of the power. If the words, “ or in any other manner,” are to be given any signification at all, we are to understand them as authorizing an appointment by deed, for in this case the execution of the power by deed does not in the least counteract the expressed •intention that the use for which the trustees were to hold was to take effect in the appointee after the death of Mrs. Hayward. A power to appoint by will, or otherwise, has been decided to authorize an appointment by deed. The words, “ or in any other manner,” are the precise equivalent of “ otherwise,” for they are or constitute the very definition of the word. If we are to give them any effect in this case at all, we must understand them as authorizing an appointment by deed, because such is their signification -in the relation in which they stand, and because there is nothing in the deed which makes the appointment “ in any other manner ” than by will inconsistent with the manifest intention, and with the uses and purposes declared. I maintain, then, that by the rules of construction, the terms, “ to take effect after her death,” apply to the further use for which the trustees are to hold the legal title, and not to the instrument by which the power is to be executed.'

This construction of the deed relieves all difficulty, and is consistent with the act of all the parties, with their purposes and intentions, and with the counsel and advice which were given to Mrs. Hayward in regard #to her power of appointing' by deed.

The case of Heatly vs. Thomas, 15 Vesey, 596, was one-where the trusts of the deed were that it should be lawful for Sarah Johnson, (the beneficiary,) at any time during her said intended coverture, by her last will and testament in writing, or any writing purporting to be her last will, to be signed by her and attested, &c., to give and dispose of the said sum, &c., to such person or persons, &c., as she should think fit; and in case the said Sarah should happen to die in the life-time of the said William, her intended husband, and without- making any will or other disposition, either of the whole or any part thereof, that then, as to the whole or such part as to which no gift or disposition should be so made by her as aforesaid, the same should immediately, on her death in the life-time of her intended husband, go and be paid, &e., &c., according to the statute of distributions. James Willis afterwards borrowed ..from the plantiff in the case £700 on the security of thp joint and several bonds of himself, William Johnson and Sarah Johnson. Sarah Johnson gave a bond of indemnity to her husband. She, during the life of her husband, .made her will according to her power, bequeathing all the property over which she had any disposing power. Her husband died in March, and she in September following, not having revoked or altered her will.

The bill was filed to subject her separate estate under the settlement, together with the estate of her husband, to the payment of the bond of the plaintiff.

The Master of the Rolls, (Sir William Grant,) suggested a doubt whether the bond could affect the separate property of Mrs. Johnson, as by the settlement she'appeared to have no power to appoint except by will, and he directed a re-argument.

Sir Samuel Remilly was counsel for the plaintiff, and he argued that the intention, as gathered from the settlement, was to authorize an appointment, both of the principal and interest, by deed in her life as well as by will, for the terms are if she should die without making any will or other disposition, and the effect of the whole was that the property was settled to her separate use.

The facts of this case would seem to be be- very strong against the power of the wife to appoint in any other way than by will, yet the Master of the Rolls, after taking the matter under advisement, made a decree in favor of the plaintiff, subjecting the estate of Mrs. Johnson to the debt.

The case of Sockett vs. Wray, referred to by the Master of the Rolls, was one where the wife had power to appoint the income or dividends only during or for life by deed, and after her death upon trust, &e., that the corpus should be transferred as Catherine Sockett should at any time during her life, by her last will and testament in writing, or any writing purporting to be her last will and testament, appoint. The Master of the Rolls in that case distinguished it from other cases cited, and held, as I think properly, that as to the interest she could dispose it for life, but as to the principal, she only could , do so by a revocable act. I refer to this case to show that Sir William Grant, on his judgment in Heatley vs. Thomas subjecting the wife’s property, places it on ground distinguishing that case from Sockett vs. Wray, where the language of the trust seemed explicit, confining the mode of appointment oí the remainder to a will, or writing purporting to be a will, in express terms.

Counsel for Lively also respectfully suggests that he may have an opportunity to be heard on the question whether the mortgage from Mrs. Hayward to Hogue and wife' was void, as declared in the opinion of the court,, and to show that the mortgage was not a mortgage of the fee, but only of the rents, which were undoubtedly the property of Mrs. Hayward.

Counsel respectfully suggests that Mrs. Hayward was fully competent in law to convey her life interest, and to charge it for the debts of her husband; and that this was not in conflict or inconsistent with the terms of the deed of trust.

Chancellor Kent announced that “ there is no doubt that a wife may sell or mortgage her separate' estate for her husband’s debts.” 3 John. Ch., 143-4; 9 S. & M., 144.

Another point which counsel desires to call to the attention of .the court, which did not arise in the argument of the case, because there was no contest between the two defendants, is how far the court will go in favor of the appointee of a power, who is a volunteer as against a creditor of the donee of the power, or one who has paid a valuable consideration for the property.

In this case Lively was a creditor as assignee of the mortgagé, and also a purchaser for a valuable consideration from Mrs. Hayward; and it may here be said that as such purchaser, the failure of Mrs. Hayward to appoint (even if she had only power .to appoint by will,) the remainder in his favor would operate as a fraud upon him, as he purchased under the full belief and under advice of counsel given to him and Mrs. Hayward that he was acquiring a right which would be sustained. Resides, as a creditor, where even the power can only be executed by will, where there is fraud intermingled, courts have gone to the extent of subjecting the property as against the appointee. There is no question that it will do so where the power is either by deed or will, for in this point there is no difference in any of the decisions, but it is also so held where the power is only by will, vjhere it is general. On this point I' commend to the court the case of. Johnson vs. Cushing, 15 New Hampshire, 298. The able opinion of the court upon a review of other authorities, announces the doctrine and effect of a general power, and shows that it is not determined by the mode of execution, but upon its objects, and that the power being general, though it is to be executed by will only if executed in favor of voluntary appointees, the court will subject the property in favor of creditors of the donee.

In view of the ¡peculiar character of the questions which, if the grandchild of Mrs. Hayward was contesting the right of Lively, would require consideration, and inasmuch as they were not discussed in the contest which the creditors of Bichard Hayward crSated in their effort to subject as well the part of the lot conveyed to Lively, and the part appointed to the grandchild of Mrs. Hayward', counsel respectfully asks the court for permission to be heard upon them before the opinion of the court, as given in this case, goes out as its final determination.

Of course counsel for Lively would be content if the opinion were to be modified to the extent of striking out, if the court should so prefer, so much of it as affects the questions between the two defendants, leaving the judgment of affirmance to stand as to the complainant, but modified as to the rights of Lively.

On which petition, Bandall, C. J., delivered the opinion of the court as follows:

The counsel of M. Lively have presented a petition asking that the opinion and judgment be modified so far as it affects his rights in connection with the property in question. Upon this matter I will simply remark, that while I agree to the conclusion that the plaintiff’s bill be dismissed, it is enough that the decision be placed upon the execution of the power by the making of the will of Mrs. Hayward. As to the conflicting clajms that may arise between the ■devisee under the will, and Mr. Lively under the deed ol' Mrs. Hayward to him, it was unnecessary and improper for the Circuit Court to decree that Mr. Lively’s title was good, because the contest in this case was between Nalle & Go. .and the defendants • and so far as the decree of the Circuit Court might be construed to determine the respective rights of Lively and the devisee, it should be reversed, and they should be left to try their titles as they may see fit.

This, I understand, to be the- effect of the judgment of this court in that respect. It was not intended to determine their respective rights in this suit, as such an issue is not presented by the record.

The petitioner Lively insists that the opinion of the court pronounced by Mr. Justice Eraser is based upon an erroneous construction of the terms of the trust deed in respect to the execution of the power, so far as that opinion relates to the effect of the deed of Mrs. Hayward to Lively. It is sufficient to say in that respect, without expressing any dissent from that opinion upon the abstract proposition that a power to be executed by will cannot be executed by deed, the effect of the deed to Lively is not determined by the judgment of this court. Whether - that deed is a proper execution of the power is an open question, depending upon a critical construction of the language of the deed creating the power.

The petition is therefore refused.