Robert Marshall, Appellant, v. Susan G. Beall, Defendant, 6 How. 70

Mr. Justice CATRON delivered the opinion of the court. Robert Marshall -filed his bill against Susan G. Beall, to recover two funds held by her as trustee for Ann Marshall, the late wife of the coriiplainant. The larger fund sued for was fifteen hundred dollars, with the addition of some interest that had accrued oh it, at the time it was received by the trustee.

In Í830, Robert Marshall and Ann Berry, both of Maryland, were about to intermarry, and before the marriage took place agreed in writing that the said Ann should hold in herself all right, title, and interest to the following funds of her own, to wit: one hundred and fifty shares of stock of the Patriotic Bank, on which ten dollars for each share had been paid ; also, one hundred and thirty-seven shares of stock in the Central Bank of Georgetown, on which eleven dollars to each share had been paid; and three thousand five hundred dollars in bonds on Charles Glover.

The marriage took place, and a portion of the property sought to be secured to the wife by the foregoing agreement having fallen into the hands of the husband, further to secure the wife in some portion of her property, another agreement was made in May, 1834, to which Marshall and wife, and Susan G. Beall, as trustee, are parties. First, the husband and wife conveyed to Miss Beall a tract of land, the property of Mrs. Marshall, to hold in trust for the use of the husband and wife during their joint lives, and for the separate use of the husband for life,' if he was the survivor.

Then follows the three thousand five hundred dollar debt from Glover, secured by the first articles, and reduced to two judgments. This debt and the land seem to have been the only property left in 1834 to either party.

The use of the land was fairly divided ; and of the debt from Glover the wife very generously gave the husband the larger portion, “ to his sole and separate use, free and clear of the marriage contract of 1830.” And then she reserved to herself the smaller judgment of fifteen hundred dollars. in very nearly the same language ; the trustee was to hold executors, administrators, and- assigns, free and clear from any control of demand of .the said Robert Marshall.” The_wife retained the power of appointment, in regard to the land and the fund, but failed to exercise the power.

She died intestate, and as by the laws of Maryland the husband was her administrator by. mere force of law, he noy claims to recover the fund from the trustee, and to retain the. money by force of his marital rights. And the question .presented for our decision is, whether the husband only made a temporary surrender of his marital rights during the coverture, or whether he abandoned them altogether. This depends on the intention of the parties, as expressed in the marriage articles.

By the first agreement we do not doubt the wife desired, and really intended, to retain her property after the marriage as if she was a feme sole ; but the agreement was vague, and it is doubtful' whether the husband’s marital rights did not attach; then he stood as trustee himself, and"' might, and obviously did, use the property. Under these circumstances,-the

article of 1834 was entered into, and the wife secured in her separate use as if she was a feme sole ; and, in consideration of a division of the wife’s property with the husband, he abandoned all claim, founded on his marital .rights, to-that part secured to the wife. We think that the terms of the agreement .of 1834 sufficiently show that the intention of the parties was to carry the title of the fund beyond the period of the wife’s death, and to exclude the -husband. And in this conclusion we are supported by the opinion of the Court, of Appeals of Maryland, in the case of War’d v.

Thompson (6 Gill & Johns. 349), and in th.e soundness of which opinion we fully concur. But there was another fund vested in Miss Beall by the will of Ann T. Beall, the mother of Susan G., the trustee, and of Mrs. Ann Marshall; and as respects this latter fund, also, the court below dismissed the complaniant’s bill, on the ground, as we suppose, that his marital rights never attached to it. The correctness of this decree depends on the will of Mrs.

Beall, the clause of which vesting in trust this legacy,, is as follows : — “ To my daughter, Amelia, Dorsett, the sum of four hundred dollars, loaned to her some years, ago. I give and bequeathe to my daughter, Ann Marshall, the sum of four hundred dollars, and hereby appoint my daughter, Susan G. Beall, her trustee, to hold and retain the whole amount in her hands, and let the said Ann Marshall, wife of Robert Marshall, have some part or parcel of the money occasionally, as she may stand in need, but to be paid out to her at the discretion of my trustee, Susan G. Beall.”. of the marriage articles. Its granting

part limits the use of the fund exclusively to Mrs. Marshall’s oyvn use and benefit; there is no disposition of the property in the event of her death ; as, for instance, to the next of kin of the devisee. In Watt v. Watt, 3 Yes. 244, Garrick v. Camden, 14 Yes. 372, and in Bailey v. Wright, 18 Ves. 49, the cases turned on a provision, that for want of appointment the property should go over to the next of kin of the deceased; and this was held to be a limitation that excluded the husband, he not being of the next of kin.

But we think there is no doubt, that, if such a limitation over had not existed, the English courts would without hesitation have adjudged the fund to the husband. Such is the plain inference from these and other cases of the same class. On the wife’s death, he is -entitled to all the undisposed of choses in action of the deceased wife. This fund was not disposed of at her death; it does not belong to the trustee, and is subject to. be distributed according to the laws of Maryland, and by these laws the husband is entitled, in exclusion of the next of kin of the deceased wife.

As to this fund, the bill will be sustained, and for so much the decree will be reversed. And the bill of Amelia T. Dorsett will also be retained as part of the proceeding in the court below on the cause being remanded there for further proceedings; when the Circuit Court will take an account between the complainant, Robert Marshall, and Susan G.

Beall, in which they will charge the complainant with any moneys he may owe said Susan G., and for the balance of the sum of four hundred dollars, with such interest as the court may find to be reasonable and proper; a decree will be rendered for said Marshall, either out of the.moneys due from Amelia T. Dorsett, or out of the fund in the hands of Susan G. Beall, the trustee.' And it is ordered, that one half the costs of this appeal be paid by the appellant, Robert Marshall, and that the other half of said costs be paid by Susan G.

Beall out of the trust fund of fifteen hundred dollars in her hands ; and that as to all other costs, the court below shall adjudge their payment on the final decree as in the- discretion of that court may be deemed proper. Order. This cause came oh to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel.

On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this case be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court, to be proceeded with in conformity to the opinion of-.this court, and. that each party pay his own costs in this court.