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 APRIL TERM, 1859. 
 
 JANE ROSS vs. ALEXANDER ROSS er. ats. 
 
 - 
 
 CLOSING ARGUMENT FOR DEFENDANTS. 
 
 BY MR. THURMAN. 
 
 P 
 
 OSGOOD & PEAROR, PRINTERS, 109 TOWN STREET, COLUMBUS. 
 
ROSS COUNTY COMMON PLEAS. 
 
 JANE ROSS v. ALEXANDER ROSS Ev. At. 
 
 I. That the ante-nuptial contract is prima facie valid, and 
 _ therefore requires no extrinsic evidence to support it unless im- 
 peached, is manifestly true. 
 Stilley v. Folger, 14 O. R., 610. 
 Hardy v. Van Harlingen, 7 O. 8. R., 208. 
 Scheferling v.. Huffman, 4 Ib., 242. . 
 Every contract made by parties able to contract, in reference to 
 a legitimate subject of contract, and containing no provision for- 
 bidden by law, is prima facie valid—and no case can be found in 
 which it is intimated that ante-nuptial contracts are exceptions to 
 this rule. On the contrary, Stilley v. Folger distinctly recog- 
 nizes it, for the Court in that case refused to hold the contract to 
 be void in the absence of testimony to impeach it. Indeed, 
 marriage contracts are favored by Courts, and upon the soundest 
 principles of policy and justice. ‘(I can see no reason [said the 
 Judge delivering the opinion of the Court in Andrews v. An- 
 drews, 8 Con., 85,] why such an agreement, deliberately made, 
 and upon sufficient consideration, should not be enforced in chan- 
 cery. Such contracts, especially in late marriages, are not un- 
 usual. They are opposed to no rule of law, nor to any prin- 
 ciple of sound policy. On the contrary, they are, in my judg- 
 ment, highly beneficial, and are eminently entitled to the aid 
 of a court of chancery, where such aid is necessary to carry 
 
 Oh? 4.5 
 
2 
 
 them into effect; and especially is this true, where the con- 
 tract has been executed, in good faith, by one of the parties.” 
 
 So, in Stilley v. Folger, 14, O. B., 649. 
 
 “Why, then, should not this agreement be enforced? Ante- 
 nuptial contracts have long been regarded as within the policy of 
 the law, both at Westminster and in the United States. They 
 are in favor of marriage and tend to promote domestic happiness, 
 by removing one of the frequent causes of family disputes, con- 
 tentions about property, and especially allowances to the wife. 
 Indeed, we think it may be considered as well settled, at this day, 
 that almost any bona fide and reasonable agreement, made before 
 marriage, to secure the wife in the enjoyment either of her own 
 separate property, or a portion of that of her husband, whether 
 during the coverture or after his death, will be carried into exe- 
 cution in a court of chancery.” 
 
 So, in Scheferling v. Huffman, 4 O. 8S. R., 241, 250, the 
 Court said, in reference to a most extraordinary contract by which 
 the intended husband stipulated not only that his intended wife 
 should have the whole of her own property, but also all the pro- 
 perty they should mutually acquire during the coverture, “nor 
 do we perceive that the execution of this contract, in this country, 
 according to the original intention, would interfere at all with 
 the policy of our own laws ”—and, further, that no good reason 
 could be assigned why it should not be executed. 
 
 Indeed, such contracts are frequently the only means to prevent 
 the injustice that would otherwise result from the generality of 
 our laws. The law, and especially statute law, can only provide 
 general rules—rules that in a large majority of cases are wise 
 and just, but that would be intolerable in particular cases were 
 there no means of taking them out of their operation Thus 
 the Statutes of Descent and Distribution provide for the disposi- 
 tion of estates after the owner’s death; but how monstrous and 
 revolting would the consequences frequently be, if this disposi- 
 tion were inevitable? Were such the case, no dying man or 
 woman could make the least provision for the nearest and dearest 
 and most necessitous relative or friend. No aged and decrepit 
 father or mother, no affectionate and needy sister, no kind friend 
 
 ; 
 
2 
 Vv 
 
 to whom were due the strongest obligations, no faithful humble 
 servant, could receive a cent from the bounty of the deceased, 
 however ample the estate might be. Nay, worse. The estate might 
 be no more than necessary for the support of a devoted wife, 
 dearer to the dying man than the life-blood ebbing from his heart, 
 her efforts as much as his own might have contributed to its ac- 
 quisition, and justice as well as affection might vindicate her 
 claim to it—and yet she might be left in hopeless destitution. 
 
 Such would be the consequences were the disposition of estates 
 left wholly to the statutes of descent and distribution. 
 
 But there are remedies provided against these evils—and what 
 are they ? i 
 
 1. The statute of wills, by which property may be disposed of 
 according to the judgment and affection of the owuer, so as to 
 take it out of the operation of the statutes of descent and distri- 
 bution. 
 
 2. Marriage Contracts—by which the same result in a large 
 class of cases is as effectually attained. 
 
 Indeed, it may well be doubted whether there is not as great a 
 necessity for allowing and upholding marriage settlements as there 
 is for a statute of wills. 
 
 What is the condition of a woman becoming a wife, in respect 
 to property ? Every dollar of her personalty becomes instantly 
 her husband’s. A life estate in her realty is immediately vested 
 in him, though no issue be born of the marriage—and if she die 
 during the coverture, she has no power on earth to provide for the 
 pressing wants of a relative, unless she has a marriage contract 
 that enables her to do so. How necessary for her, then, is such 
 a contract. 
 
 But let us see what is a man’s condition. The moment he 
 marries, his wife becomes entitled to dower in his real estate, 
 however little she may need it—however much his interest, his 
 affections, or his duties may require it to remain unincumbered. 
 Of all his personalty, however great, if he die without issue, she 
 surviving, she becomes absolute owner in despite of any will or 
 testament he can make. She may have an ample fortune with- 
 
4 
 
 out it, while his relatives are destitute of bread, and yet she takes 
 it all, all to the very last penny. The very mother that bore him 
 may become the inmate of a poor-house for want of support—yet the 
 widow takes all. How necessary for him, an ante-nuptial contract. 
 
 The plaintiff’s counsel argued at bar as if it were the duty of 
 a man, on taking a wife, to crush out of his heart every affection 
 for any one else; to forget father, mother, brother, sister, friend ; 
 and that however great may be his fortune, and however amply 
 he may provide for his wife, every dollar he gives to another is 
 just so much of which she is robbed. And the statutes of des- 
 cent and distribution were appealed to as furnishing the sole rule 
 of morality in the disposition of a decedent’s estate, as if there 
 were no such thing as a statute of wills, or a valid marriage con- 
 tract, or as if the whole code of morals and of the affections were 
 embraced in the statute law. 
 
 On further reflection, the learned counsel have started, in their 
 printed argument, another theory. They think it right enough, 
 nay, favored by policy and the law, for a man to give away his 
 estate while he lives, though he may thereby leave nothing for the 
 statutes of descent and distribution to operate upon; but to do 
 so by will, is, in their opinion, a crime against both morals and the 
 law. The former course, they tell us, deserves encouragement be- 
 cause it prevents hoarding; the latter deserves reprobation, be- 
 cause it promotes avarice. But they fail to tell us at what age a 
 man should begin to part with his property:; whether, relying on 
 the Scriptures, he should await the approach of three score and 
 ten, or, looking into the bills of mortality, should begin the good 
 work at an earlier period, or, observing how many strong men are 
 cut down in their youth, he should wisely distribute as fast as he 
 makes. It would certainly aid us greatly in the discharge of our 
 moral duties, as seen by the learned counsel, had they condescend- 
 ed to be a little more definite. 
 
 But as it is, I am obliged to them for the concession, that Mr. 
 Ross might lawfully and morally have given away in his life 
 the property he disposed of by his will; for if that be so, as it 
 certainly is, what right has the plaintiff to complain? He has 
 
5 
 deprived her of nothing that he could not have given away be- 
 fore he died; in other words, he has deprived her of nothing to 
 which she had a right. 
 
 II. The ante-nuptial contract being prima facie valid, the 
 burthen rests upon the plaintiff to show that it is invalid. 
 
 To do this, what is necessary ? 
 
 1. To aver facts that invalidate it. 
 
 2. To prove the averments. 
 
 Neither averments without proof, or proof without averments, 
 will suffice. There must be both; and this is as much a rule of 
 code as of chancery pleading. Thus, if fraud be relied on, it must 
 be alleged, and the particulars of it set forth. And so of undue 
 influence ; it must be shown to have existed, and also to have been 
 exercised to procure the instrument.—Sullivan v. Sullivan, 21 
 Law Rep. (January, 1859) 531, 545, and cases hereinafter 
 cited. I donot pretend that there are any technical terms whose 
 use is indispensable, as, for instance, ‘‘ undue influence.” I am 
 willing to admit the proposition of plaintiff’s counsel, that, “a 
 detailed statement of cireumstances, from which undue influence 
 or incompetence is necessarily inferable, is sufficient as an aver- 
 ment in equity ;” but the inference must be a necessary one, not 
 one that merely may be drawn. For ‘all acts are presumed to 
 be rightly done,” and all persons presumed to be innocent, until 
 the contrary clearly appears; and hence, where there may be con- 
 trary inferences, that which upholds is preferred to that which 
 destroys.—Broom’s Max. 729; Greenleaf’s Hv., Secs. 34, 35, 
 80; 10 Coke’s Rep. 56. 
 
 And there is nothing in the code that relieves a party from the 
 necessity of properly stating hiscase. The chapter referred to by 
 counsel has no such effect; it merely permits variances to be 
 cured. But an omission of indispensable averments, is not a vari- 
 ance; it is a failure to state a cause of action. 
 
 We are thus brought to inquire— 
 
 1. What facts are averred to invalidate the contract ? 
 2. Are they sufficient ? 
 3. Are they proved ? 
 
6 
 
 Now, I confidently affirm, that there is not a single fact aver- 
 red in the plaintiff’s pleadings to show that the ante-nuptial con- 
 tract is invalid. 
 
 There is no averment that it was obtained by 
 
 Duress, or 
 Fraud, or 
 Undue Influence, 
 Or, that it was not reasonable. 
 Nor are facts stated from which either is a necessary inference. 
 
 Of duress, which in legal parlance is bodily restraint, or well 
 grounded fear of bodily harm, it is, of course, unnecessary to say 
 anything, for no such thing is pretended. 
 
 As to fraud and undue influence, there is not a word in the Peti- 
 tion in respect to either, and so far is the Reply from setting up 
 any such thing, that it admits directly the contrary. 
 
 For it is expressly averred in the Answer, that, “in making and 
 concluding said contract, no unfairness was practiced by Mr. 
 Ross towards the plaintiff, and no advantage taken of her in any 
 respect, and it was entered into by her with full knowledge of its 
 nature and effect.” No denial of these allegations, or of either 
 of them, is made in the Reply, and, therefore, by the express pro- 
 vision of the statute, they are to be taken as admitted. 
 
 And, in respect to the reasonableness of the contract, there is 
 not a word of averment that it was unreasonable, nor a fact 
 stated from which any such thing can be inferred. For there is 
 not one word in the pleadings to show the extent of Mr. Ross’ 
 fortune at the date of the contract. What he was worth ten years 
 afterwards, namely, at his death, is averred ; but for aught that ap- 
 pears in the pleadings, he may not have been worth $10,000 at the 
 date of the marriage. That he had “considerable” property, is 
 shown by the answer, and also by the contract itself ; but they show 
 the very same thing in respect to the plaintiff. The extent, how- 
 ever, of the fortune of either, is not averred, and, for aught that 
 appears, the plaintiff was as rich as he. 
 
 eee eens 
 
( 
 
 But we have a sort of historical romance, set up in the Reply, 
 from which it may be said that something, I don’t know what, 
 ought to be inferred that invalidates the contract. We are told 
 of a previous courtship, a former engagement, its being broken off, 
 a second engagement on July 12, 1847, and then the Reply proceeds: 
 
 “A few days before the date of the ante-nuptial contract, Mr. 
 Ross introduced that subject and proposed the terms. The sub- 
 ject was unpleasant to the plaintiff, for the proposition came at a 
 time when the engagement had become known and arrangements for 
 the marriage were in progress, so that the plaintiff was under 
 a constraint to submit to any terms rather than endure the morti- 
 fication of a second rupture.” 
 
 And this is positively the whole of the ground alleged for set- 
 ting the contract aside. 
 
 Now, in the name of the law, I ask, to what class of things, 
 fatal to a contract, does this matter belong ? 
 
 It is not duress, for that is bodily restraint or fear. 
 
 Is it fraud ? Must every ardent young lover, at the same mo- 
 ment in which he avows his passion to his Laura, before he has 
 risen from his knees, and while the tears of joy are in his eyes, 
 and the blushes are on her cheek, begin to chaffer about a con- 
 tract, or be forever precluded from making one? Or, if it is 
 Laura who desires a settlement, must she, the instant after a 
 faintly whispered “yes,” to her lover’s fervent prayer, assume a 
 business-like tone, and straightening herself up, say: ‘But, sir, 
 I want to know your terms. How much do you propose to give 
 me? What property of mine do you propose to let me keep? 
 Here, sir, are pen, ink and paper, down with your terms. The 
 matter must be arranged now, for if you go away before doing 
 so, and tell any one of our engagement, it will be too late to talk 
 of a marriage contract. You would then be under a constraint 
 to accept any terms I might propose for fear of the mortification of 
 a rupture, and so any contract you might make with me would 
 be set aside, on the ground of my fraud.” 
 
 Ts it undue influence ? 
 
 What is undue influence ? 
 
 It is not the influence that properly belongs to, or results from, 
 
8 
 
 kindness or affection. Such an influence is legitimate — nay, it 
 upholds transactions that without it could not be upheld. It is 
 no objection to a contract, gift, or devise, that it was induced by 
 affection. Natural love and affection is a sufficient consideration 
 to support any gift or grant. Even in the case of a wife, sub 
 potestate virt, making a gift of her own estate to her husband, it 
 is sufficient. Hardy v. Van Harlingen, supra. A fortiori is 
 it sufficient, when the parties are sui juris? 
 
 If I grant an estate to a stranger for a grossly inadequate price, 
 that fact, coupled with other circumstances, may raise a presump- 
 tion of fraud, and avoid the deed. But if out of affection for a 
 friend, though in no wise related to me, I grant it to him fora 
 twentieth of its value—nay, give it to him — the grant is good. 
 
 Affection then sustains, instead of destroying, contracts; and 
 if the plaintiff, out of affection for her intended husband, accepted 
 a provision, which, with less affection, she would have rejected, 
 this circumstance, instead of invalidating, upholds her agreement. 
 
 But undue influence is quite another thing. It is that domin- 
 ion of one person over another, sometimes seen, that leaves no 
 free will — that obliterates reason, silences duty, counteracts affec- 
 tion, destroys the sense of obligation, and makes its victim the 
 mere passive instrument of his master’s volition. And hence it 
 has been aptly enough called “ moral duress.” 
 
 In 1 Williams on Executors, page 42, it is said: “But the 
 influence to vitiate an act must amount to force and coércion, de- 
 stroying free agency ; it must not be the influence of affection and 
 attachment; it must not be the mere desire of gratifying the 
 wishes of another, for that would be a very strong ground in sup- 
 port of a testamentary act; further, there must be proof that the 
 act was obtained by this coércion ; by importunity that could not 
 be resisted; that it was done merely for the sake of peace; so 
 that the motive was tantamount to force and fear.” And see 
 Williams v. Goude, 1 Hage. 581. 
 
 In the American notes to the same work is the following : 
 
 “It may be gathered from the able opinion of Mellen, 0. J., 
 in this case, (Small v. Small, 4 Greenleaf, 220,) that no matter 
 what the character and amount of influence exerted on the testa- 
 
9 
 
 tor during his lifetime and antecedent to the making of the will, 
 the instrument will still be upheld, provided it appears that such 
 influence was general, and arising at all times, not exerted partic- 
 ularly in relation to the will in question, but acting constantly 
 upon the feebler will of the testator with that prevailing force 
 which a strong mind and determination ever exercise over a weak 
 one.” 1 Williams on Executors ['41] note g. 
 
 And Greenleaf says: “But it is said that undue influence is 
 not that which is obtained by modest persuasion, or by arguments 
 addressed to the understanding, or by mere appeals to the affec- 
 tions; it must be an influence obtained either by flattery, exces- 
 sive importunity or threats, or in some other mode by which a 
 dominion is acquired over the will of the testator, destroying his 
 free agency, and constraining him to do, against his free will, 
 what he is unable*to refuse.” 2 Greenleaf’s Ev., sec. 688. 
 
 Undue influence is most frequently spoken of in treating of 
 wills ; for it is in respect to them that the question of such influ- 
 ence most frequently arises. But the thing is the same whether 
 the instrument be a will or a contract. No distinction between 
 the two is to be found in the books. On the contrary, Judge 
 Story, speaking in express terms of contracts obtained by undue 
 influence, and putting cases by way of example, gives the reason 
 why the party is not bound in the following words: “For, in 
 eases of this sort, he has no free will, but stands in vinculis.” 
 1 Com. on Eq., sec. 239. 
 
 Very far, then, from undue influence is simple affection, and 
 further yet is a mere desire to avoid an ill founded mortification— 
 a mortification where all the blame would fall on the wrong doer, 
 and all the sympathy be on the side of the wronged. 
 
 And it is also to be remembered, that to set aside an instru- 
 ment, it is not sufficient to show general undue influence, but it 
 must be shown that such influence was specially exerted to pro- 
 cure the particular instrument. Sce authorities supra. 
 
 It is hardly necessary to remark that there is not one word of 
 either allegation or proof of any such special exertion in this 
 case. 
 
 I am well aware it may be said that a lesser degree of influence, 
 
 2 
 
 wo 
 
10 
 
 coupled with other damaging circumstances, may prevent the 
 specific execntion of a contract, than would be necessary to justify 
 its being set aside, and I shall hereafter consider the case in that 
 point of view. Inthe meantime, however, I remark, that in both 
 cases the nature of the thing (the undue influence) is precisely 
 the same ; that it is never in any case to be confounded with affec- 
 tion; and, whether the question be upon executing or avoiding a 
 contract, it must distinctly appear that the instrument was not 
 the free will of the party. 
 
 But how is the fact? Had the engagement become known be- 
 fore the contract was proposed? Upon this I observe— 
 
 1. That the Reply does not so state unequivocally. 
 
 2. That the burthen of proof is on the plaintiff, and she has 
 not adduced a particle of testimony of any such thing. 
 
 3. That the testimony shows the contrary. 
 
 I shall not repeat what has been said by my associates on 
 this head, but will confine myself chiefly to a correction of 
 some very glaring errors of the plaintiff’s counsel in respect to 
 it. They say: ‘The fact that the actual verbal engagement had 
 taken place before the ante-nuptial contract was proposed, is 
 proved by the testimony of Mr. John Dun and the date of entry 
 in the books of Messrs. Thurman & Sherer, connected with the 
 testimony of her sister and aunt.” 
 
 Now, the sister, Mrs. Beech, did not testify to a word about the 
 contract. She only stated when she was told of the engagement. 
 Her testimony, therefore, throws no light upon the question, 
 when was the contract proposed. 
 
 But the testimony of the aunt, Mrs. McLandburgh, does; and 
 shows very satisfactorily that it was proposed at the very time of 
 the marriage engagement. For she testified that the first she 
 knew of the engagement was from Mr. Ross, and that, at the 
 same time, he told her in detail what had been agreed between 
 him and Jane in respect to their property. This, said she, was 
 ““a day or two previous to July 14th,” and she was enabled to fix 
 the date with certainty by reference to certain store bills. It was 
 "as early then as the 12th, or at most the 18th, of July. But the 
 
11 
 
 marriage engagement took place on the 11th or 12th of July— 
 the Petition says, the 12th. So, it was the very day of, or the 
 day after, the making of the engagement, that Mr. Ross told 
 Mrs. MeLandburgh of both the engagement and the agreement. 
 Can there be a doubt, then, that both were arranged at the same 
 time? Let it be remembered that these were old people, and 
 that a marriage between them was, to a great extent, a matter of 
 simple convenience; that a marriage contract was, under the cir- 
 cumstances, eminently proper, and would naturally be thought of ; 
 that the parties were both business people and had long known 
 each other; and that for them, under the circumstances, to 
 make their engagement and property arrangement at the same 
 sitting, was neither unnatural or indelicate; however strange 
 such a transaction might seem between youthful and ardent 
 lovers. Let these things be borne in mind, and I hazard 
 nothing in saying that no one can believe that Mr. Ross, at 
 his time of life and with his estate, and with a certainty that 
 there would be no issue of the marriage, would ever have en- 
 gaged himself to the plaintiff without an understanding in re- 
 spect to the property of the parties. Very few sensible men 
 would, under such circumstances, have done so; certainly not as 
 clear headed, practical and upright a man as was Mr. Ross. 
 
 The plaintiff’s counsel, seeing the force of Mrs. McLandbureh’s 
 testimony, labor hard to avoid it, and, in doing so, fall into the 
 great error of stating that she testified that ““ Ross told her that 
 there was a writien agreement between him and Jane” — whereas 
 the fact is, she said not one word about its being in writing. 
 
 Having fallen into this error, they next imagine that there must 
 have been two conversations, and that it was in the latter, and 
 after the execution of the contract, that Mr. Ross stated the 
 agreement to the witness— whereas the whole ground of this 
 hypothesis is at once removed by the fact that the witness did not 
 speak of a written contract; and, in addition to this, it will be 
 remembered that she was exceedingly clear in her recollection that 
 she heard of the engagement and the agreement at the same time, 
 and that, when Mr. Ewing sought to demonstrate, in his speech, 
 that she was mistaken as to the time, she unhesitatingly and pos- 
 itively assured him that she was not. Nor is there any, the least, 
 
12 
 
 likelihood that she was. There can be no doubt that Mr, Ross 
 contemplated a marriage contract as well as a marriage; and I 
 have shown, I think, that all the probabilities are in favor of the 
 idea, that both the engagement and agreement were settled at the 
 Same time. And thus being settled, nothing was more natural 
 than that, when he mentioned the one to as intimate a friend as 
 Mrs. McLandburgh and a relative of Miss Welsh, he also men- 
 tioned the other. And it would be very strange for the memory 
 of the witness to become confused about a conversation that so 
 much interested her ; for, in the intimate relation she held to both 
 the parties, she must have felt the strongest interest in what she 
 
 heard, and it was likewise fastened in her memory by the fact that 
 "it took her wholly by surprise, as she had long entertained the 
 belief that they would never get married. Under such cireum- 
 stances, there are few women whose memories would be at fault — 
 certainly not a woman with the marked vigor of intellect of Mrs. 
 McLandburgh. 
 
 But had Mrs. McLandburgh spoken of a written contract, it 
 would be much more reasonable to suppose that she did so under 
 an erroneous impression that the agreement had been reduced to 
 writing, than that she should be mistaken as to the time and de- 
 tails of the conversation which she fixes by so many certain marks. 
 Mr. Ross stated to her the particulars of the agreement, and it 
 would not have been strange had she thence inferred that it was 
 in writing: but it would be very strange, under the circumstances, 
 for her to be mistaken as to the time of the conversation, or rather 
 for her to confound two distant conversations and blend them into 
 one. But it is of no use at all to speculate about this. The tes- 
 timony is our guide, and that is clear and positive. The witness 
 did not speak of a written agreement, and she did affirm, and re- 
 peat it, that there was but one conversation on the subject, and 
 that that took place “a day or two previous to July 14th.” And 
 this date she fixed by infallible data. This leaves no room at all 
 for any speculation. 
 
 As to the testimony of Mr. Dun, and the entry in Thurman 
 & Sherer’s book, they prove what is shown by the contract 
 itself, that it was not executed until after July 15th; and this is 
 
 ee eee 
 
13 
 
 all that the plaintiff can claim from them. But they are potent 
 evidence for the defendants, since they powerfully corroborate the 
 testimony of Mrs. McLandburgh. Mr. Dun states, that, at the 
 same time that Mr. Ross communicated to him his marriage en- 
 gagement, he placed in his hands a paper, desiring him to copy it, 
 and hand the copy to Mr. Thurman for his legal opinion ; and, in 
 the same conversation, told him what property he was to settle 
 on his intended wife. Mr. Dun accordingly made and handed 
 the copy to Mr. Thurman, and Mr. T. prepared a written opin- 
 ion, which he handed to Mr. Dun, who paid him for it. This 
 payment, as appears by the books of Thurman & Sherer, was 
 on July 15th —not over three or at most four days after the 
 making of the engagement. Now, it is fair to presume, that, 
 inasmuch as Mr. Dun had to copy the paper, and call on Mr. 
 Thurman, and Mr. T. took time to prepare a written opinion, the 
 conversation between Mr. Ross and Mr. Dun took place several 
 days before the 15th. The probability is, that about the same date 
 that Mr. Ross told Mrs. McLandburgh about the engagement 
 and agreement, he also communicated them to his intimate friend, 
 Mr. Dun. It is thus manifest, that the terms of the agreement 
 were understood several days prior to the 15th, according to Mr. 
 Dun’s testimony ; several days prior to the 14th, according to 
 Mrs. McLandburgh’s —in a word, they were contemporaneous 
 with the engagement. Mrs. McL. testifies positively, that Ross 
 told her that he and Jane had agreed about their property ; and 
 the testimony of Mr. Dun is to the same effect. For how could 
 Ross have told him, prior to the 15th, what property Jane was to 
 have, and set about getting the necessary legal advice in reference 
 to a contract, unless such an agreement had been made? And 
 why did he state an A. and B. case for Mr. Thurman’s consid- 
 eration, if his engagement with the plaintiff had become public, 
 as is pretended in the Reply? It won’t do, in the face of this tes- 
 timony, and in the total absence of countervailing proof, to say, 
 that this was all done without consulting Jane; that there was no 
 agreement between her and Ross; and that the latter did not 
 deem it necessary to consult her, because he knew that his influ- 
 ence over her was such that she wonld readily assent to anything 
 
14 
 
 he might propose. This theory is in direct antagonism with the 
 testimony of Mrs. McLandburgh, with reasonable probability, and 
 with the plaintiff's Reply. Mrs. McL.’s testimony proves that 
 Jane had not only been consulted, but had agreed to the terms. 
 The reasonable probability, from the testimony of Mr. Dun, and 
 the character and situation of the parties, is to the same effect. 
 And the Reply, instead of asserting that the plaintiff was under 
 any such dominion of Mr. Ross, that he could make her assent to 
 whatever he wished, charges (if the charge amounts to anything), 
 that it was fear of public mortification, and not any influence of 
 his, that induced her to assent to the contract. 
 
 Indeed, may it please your Honor, the whole rose-colored lite- 
 rature of this case is a mere piece of fancy. These parties were 
 first engaged many years ago. For a very sufficient reason—be- 
 cause his health forbade marriage—he offered to release her from 
 the engagement. The offer was made when he was stretched on 
 a bed of sickness, from which he had no assurance he would ever 
 tise. It was made through the medium of a mutual and most re- 
 spectable friend ; in what terms of kindness, we don’t know, for 
 the plaintiff has not seen fit to produce Mr. Coburn’s letter. It 
 was assented to by her without, so far as appears, a single mur- 
 mur, or even a pang. Certain it is, the conduct of Mr. Ross 
 could not have been considered in the least degree dishonorable, 
 for he retained the esteem and friendship, not only of the plaintiff, 
 but of all her relatives and friends. And if it be said that she 
 was so submissive as to kiss the hand that smote her, there is no 
 reason to predicate such irrational humility of those with whom 
 she was connected. They, at least, were not under his dominion : 
 her brothers and her intelligent and high-minded aunt were not 
 insensible to what touched the honor or the feelings of their sister 
 and niece; and whatever she might have been willing to endure at 
 his hands, they would never have held in the bonds of friendship 
 the man who had wronged and insulted her. But her counsel are 
 not so forgiving. What she and her family have ever acquiesced 
 in with every appearance of contentment, excites in their minds 
 the liveliest indignation; and their imagination, somewhat robbed 
 of its lustre by a professional bias, revels in the idea of what a 
 
15 
 
 nice breach of promise case they would have had but for the want 
 of spirit in their client. 
 
 We have next another fancy sketch, in which Mr. Ross is rep- 
 resented as a dog in the manger, unwilling to marry Miss Jane 
 himself, and frightening off all other suitors for nearly a quarter 
 of a century. I don’t know what reliance counsel place in the 
 love of the marvelous, but without some such explanation, I am 
 wholly unable to comprehend the exhibition of this picture. To 
 a plain man like myself, who uses his natural eyes, and sometimes 
 
 looks into the census returns, it does not seem necessary that there 
 should be a Mr. Ross in order that there should be an old maid. 
 I have always supposed that some women were maidens because 
 they could not get husbands, and that others were such because 
 they had the good sense to prefer a single life to an ill-assorted 
 marriage; but a case of forced maidenhood, such as is here pre- 
 sented, I have never known or heard of, and without better proof 
 than this case affords, I must be allowed to deny its existence—I 
 might say, its possibility. 
 
 But out of these materials the inventive genius of counsel has 
 drawn a portrait of their client as an embodiment of supernatural 
 meekness, humility and devotion; and what is stranger yet, the 
 object of these exaggerated affections was, according to the same 
 limners, the dryest, hardest, most selfish and insensible old miser 
 that ever tied a purse. And to make the contrast yet stronger 
 and our astonishment still more profound, he was nearly or quite 
 old enough to be the father of the lady when first he bound her in 
 his magic chains. 
 
 Now, may it please your Honor, there is no foundation in a 
 court of justice for all this poetry. It might serve well enough 
 as the groundwork of a tale of fiction, but it has no place here. 
 Mr. Ross never wronged Miss Welsh; he was quite incapable of 
 that. Their first engagement was mutually and honorably dissolv- 
 ed, and, for reasons that were satisfactory to themselves, and that 
 we neither know nor have a right to pry into, it was not renewed 
 until late in life. When it was renewed, they had long since ceas- 
 ed to be moved by the romantic impulses of youth, if indeed they 
 had ever been so moved. Their former love had settled down into 
 
16 
 
 a quiet and solid friendship, which made the company of each 
 agreeable to the other, and a marriage was the natural result. 
 But no issue was or could.be expected from it, and they mutually 
 looked to their own relations as the recipients of their ultimate 
 bounty. It would have been unjust in him to deprive her rela- 
 tives of her property, and they had no right or claim whatever 
 upon his. Hence a marriage contract—a contract that left to the 
 wife her own means, with all its increase, and provided for her an 
 ample support for life out of his, leaving the residue of his fortune 
 to go to his kindred, if so he should will it, as her fortune would ~ 
 assuredly go to hers. This is the plain case, stripped of the ro- 
 mance that has been thrown about it—a case that requires no 
 marvelous devotion, no undue influence, no saint, devil, magician, 
 or bewitched damsel, to account for everything that took place. 
 
 The gravamen of the plaintiff’s charge is, that the engagement 
 had become known before the contract was proposed, whereby she 
 was under a constraint, &e. She makes no proof whatever of 
 this allegation, and it is successfully disproved. Indeed, there is 
 no evidence that even at the date of the execution of the contract, 
 the engagement was known to any person but the parties them- 
 selves, her relatives, and Mr. John Dun. 
 
 But suppose it was known before the contract was proposed, it 
 yet remains to inquire— 
 
 1. Did that fact cause her to agree to the contract ? 
 
 2. If it did, is it sufficient to invalidate it ? 
 
 As to the first of these questions, I remark : 
 
 (1). That it is not averred in the plaintiff’s pleadings that she 
 was induced to agree to the contract, or even influenced, by any 
 such consideration. The Reply is studiously ambiguous, equivo- 
 cal and evasive on this subject. It is in these words: ‘A few 
 days before the date of the ante-nuptial contract, Mr. Ross intro- 
 duced that subject and proposed the terms. The subject was un- 
 pleasant to the plaintiff, for the proposition came at a time when 
 the engagement had become known, and arrangements for the 
 marriage were in progress, so that the plaintiff was under a con- 
 
L7 
 
 straint to submit to any terms rather than endure the mortification 
 of a second rupture.” 
 
 Now observe, it is htre said that the “ swhject” was unpleasant 
 to the plaintiff, but it is not averred that she was dissatisfied with 
 the ferms proposed. 
 
 Again: She says that she “was under a constraint to submit 
 to any terms rather than endure the mortification of a second 
 rupture.” That is, she would have submitted to any terms—not 
 that she did submit to the terms in question for any such rea- 
 son. , 
 
 (2) The thing to be avoided was the mortification of a second 
 rupture. But there is no averment or proof that such a rupture 
 would have occurred, had she desired better terms; nor that Mr. 
 Ross would not have made a more liberal provision, had she re- 
 quested it. And if it be said that her delicacy forbade such a 
 request in person, what was there to prevent its being made by 
 her brother or a friend? Why, then, I ask, if she was dissatis- 
 fied with the terms, did she not communicate her dissatisfaction, 
 as, in honor and in justice to Mr. Ross, she was bound to do ? 
 
 But, according to the Reply, nothing of the sort was done. 
 She kept, it is said, the terms of the proposition a profound se- 
 cret, and, days after it was made, executed the contract that em- 
 bodied it, upon the strength of her own judgment, without con- 
 sultation, and without the slightest expression or appearance of 
 discontent. 
 
 _ If this was so, the inference is irresistible that she felt. the 
 terms to be just and was satisfied with them. Why, was she 
 willing to marry a man who she thought was so dishonorable 
 that he could propose unreasonable terms to her, and require her 
 acceptance of them under the penalty of forfeiting his marriage 
 engagement? Was this the opinion she entertained of Mr. 
 Ross? If so, why did she marry him at all? Why ally herself 
 to injustice and dishonor? And what sysyggit#fs she entitled 
 to, if she married a man of whom she had such an opinion ? 
 But she believed no such thing. She knew his uprightness, she 
 knew his honor, she knew he was incapable of acting unjustly 
 towards her, and she knew that his proposition was not unjust. 
 3 
 
18 
 
 She knew with what economy he had lived, with what economy 
 she had lived; that neither of them contemplated a different life 
 in the future, married or unmarried; that fo children would come 
 of the marriage; that all he owed her, if she married him, was a 
 comtortadle subsistence for life; that she needed nothing more ; 
 and that anything he gave her beyond this, would be simply di- 
 verting his property from his own relatives to give it to hers, 
 whom he was under no obligation to provide for—for he pro- 
 posed to marry her, and not the whole family of the Welshes. 
 She knew all this, and she knew that by marriage she would, on the 
 terms proposed, be relieved from all expenses and allowed to 
 accumulate the increase on her own property, so long as he lived, 
 and be amply provided for out of jis estate, if she survived him, 
 for the remainder of her life; and she knew that this was all she had 
 a right to ask; and it was all. She agreed to the contract then, 
 not because of the equivocally intimated, but not asserted, ap- 
 prehension of the Reply, but because she knew it to be just. And 
 if she did apprehend any dissatisfaction on his part, if she ex- 
 pressed dissatisfaction with it, it was because she felt that he 
 would have a just right to be wounded with her ill founded dis- 
 content. 
 
 (3) But suppose it was not so—suppose that she acquiesced in 
 the contract to escape the mortification she speaks of—does that 
 invalidate the contract ? 
 
 I answer, No. i 
 
 Why is it'to be tolerated, that after a woman at least 49 years 
 
 of age, sharp, shrewd, intelligent, and accustomed to business, has 
 
 executed a contract without a murmur, without the least sign of 
 repugnance or dissatisfaction, a contract that she had had days 
 to ponder over before she signed it; after she has done this with- 
 out intimating to either lover, relative or friend, a desire for a 
 more ample provision, and without any well or ill founded appre- 
 hension, so far as is shown, of a rupture of her engagement if she 
 did so; after she has thus suffered the man to marry her in the 
 security that she was satisfied ; after she has suffered him to live in 
 that security for ten years, never doubting the validity of her 
 contract or her faithful adherence to it; after she has fortified that 
 
wt. 
 
 security by accepting a more than ample compensation for the 
 property settled on her, and joined him in conveying that property 
 to others, and accepted from him also a valuable gratuity in the 
 shape of new buildings on her own estate; after she has suffered 
 him to die in this security without having provided in his lifetime 
 for a single being of his own blood—as he might and no doubt 
 would have done had he doubted her good faith—after all this, 
 shall she be allowed to put on airs of extreme sensibility and 
 morbid delicacy of feeling, and tear from the blood kin of her 
 husband the fruits of his long and laborious life, not to minister 
 to her own wants, but to enrich her relations and hangers on— 
 and this upon the ground that she apprehended a mortification 
 which she never expressed, never intimated, never took any pains . 
 to verify or to obviate, and which, if it was ever felt at all, was in 
 all human probability wholly imaginary? Are solemn contracts, 
 relied upon in life and in death, to be set aside, the objects of a 
 man’s. whole life of economy and toil to be frustrated, the near 
 and dear relatives of his blood to be disinherited and his estates 
 divided among strangers, upon such a figment as this ? 
 
 But it is argued with great earnestness that the contract was 
 unreasonable.. 
 
 Tn answer, I have to say : 
 
 / 1. That no such issue is made by the pleadings. 
 
 2. That the contract was reasonable. 
 
 In support of their point, counsel cite Séilley v. Folger, in 
 which case the Court used the following language: ‘“ Indeed, we 
 think it may be considered as well settled, at this day, that almost 
 any bona fide and reasonable agreement, made before marriage, 
 to secure the wife in the enjoyment ezther of her own separate 
 property, or a portion of that of her husband, whether during 
 the coverture or after his death, will be carried into execution in a 
 court of chancery.” (p. 649.) And again: “It is said in this 
 case, the provision made for the wife is so much less than the 
 value of one-third part of the husband’s lands, that it would be 
 unreasonable to permit the agreement to operate as a bar. There 
 is not, however, with the proofs, anything satisfactory to show the 
 
20 
 
 value of the real estate of the husband, or of which he died 
 seized ; and, without such evidence, no such deduction can be 
 legitimately drawn.” (p. 650.) 
 
 Upon this T have to remark : 
 
 1. That it appears by the extract last quoted, that the ques- 
 tion, whether the provision must be reasonable, was not before the 
 Court, for there was no proof to raise that question. 
 
 2. That the remarks of the Court relate to a relinquishment 
 of dower only. Far, 
 
 (1) The case before the Court was for dower only. (2) There 
 is a manifest and most material difference between dower and dis- 
 tribution. By marriage a woman becomes entitled to an inchoate 
 
 _vight of dower in all the estates of inheritance in lands of which 
 her husband is, or may be, seized during the coverture—of which 
 right she cannot be deprived without her consent. But to his 
 personalty the marriage gives her no right, perfeet or inchoate. 
 His dominion over that is absolute, notwithstanding the coverture ; 
 and he may give or gamble away every cent of it, not only with- 
 out her consent, but against her will. Or he may convert it all 
 into realty; or he may remove to a State whose laws of distribu- 
 tion gi¥e nothing to a widow. The consequence is, that the 
 
 value of his personalty can never be taken into account to show 
 that an ante-nuptial contract is unreasonable. 
 
 (3) It cannot, for a moment, be supposed, that in order to be 
 reasonable, the provision made by the contract must be equal in 
 value to what the wife would take by the statute, in the event 
 of her surviving her husband. For, 
 
 (a) That would make an ante-nuptial contract practically 
 useless. If the intended husband must give what the law would 
 give, where is the use of a contract? If, for instance, in a case 
 like this, where it is certain the man will die without issue, he 
 must give the value of all his personal estate, what benefit could 
 there be in an ante: nuptial contract ? 
 
 (b) Such a doctrine would deprive parties competent to con- 
 tract of the power to say what the one should give and the 
 other receive, and would thus he a restraint upon the power to 
 
21 
 
 contract and a discouragement to marriage—both which are op- 
 posed to the policy of the law. 
 
 (c) Such a doctrine would set up an impracticable standard: 
 For the contract must be valid when made, or never valid. But 
 if its validity depends upon the provision being equal to what 
 the wife would take in the event of her survivorship, how can 
 such a contract be made, when neither of the parties can tell 
 what the husband may be worth at his death, or in what his 
 property may consist. ? 
 
 (d) Such a doctrine is unsupported by a single authority, and 
 is opposed by a multitude. See, among others, the following 
 cases, in all which the contracts were held to bar dower or dis- 
 tribution : ; 
 
 Davila v. Davila, 2 Vern., 724, in which the husband re- 
 eeived by the wife £1,000, and covenanted that if she survived 
 him, she should have £1,500 out of his estate. So he gave her 
 but £500 contingently. 
 
 Andrews v. Andrews, 8 Con., 79, in which there was no pro- 
 vision for the wife, except to do some carding and weaving for 
 her. 
 
 Sellick v. Sellick, ibid., 85, note, in which the value of the 
 estate was $6,000, the provision for the wife only one-sixtieth part 
 of that sum—namely, $100. 
 
 Gelzer v. Gelzer, 1 Bailey Eq., R. 387, in which there was 
 no provision for the wife, the consideration of her covenant being 
 the marriage only, and the nominal sum of one dollar. 
 
 Cannel v. Buckle, 2 P. Wms. 242, in which there was no 
 provision for the wife. 
 
 Vizard v. Longden, (cited in 3 Atk. 8, and 2 Eden, 66,) in 
 which the provision for the livelihood aad maintenance of the 
 wife was but £14 per annum. 
 
 Where the woman is an infant at the time of entering into the 
 contract, courts of equity will, in general, scrutinize it, to see that 
 it is reasonable, before enforcing it; but when she is an adult, 
 and, therefore, capable of contracting, the marriage itself is a 
 sufficient consideration to support her covenant, and she will be 
 
22 
 
 barred, though no provision at all be made for her. This distine- 
 tion runs through all the cases, and is recognized by all the text 
 writers on the subject. In the argument of Stilley v. Folger, 
 Messrs. Storer & Gwytine truly said, (pp. 632, 633): “We 
 feel justified in the conclusion, that wherever there is a contract 
 by a female, competent to contract, to accept anything in lieu of 
 dower, courts of equity will act upon her conscience, and by 
 virtue of their power to enforce the specifie performance of con- 
 tracts, will compel her to abide by her bargain. The adjudged 
 cases and the text books bear us out in the assertion. In 4 
 Dane’s Abr., c. 130, art. 5, secs. 20 and 21, an adult woman is 
 said to be barred by her acceptance of any provision, however 
 small and precarious ; in 1 Cruise’s Dig.; 226, by her acceptance 
 of any provision ; in 1 Clancy, on Husband and Wife, 220, 1, 2, 3, 
 by her agreement to accept any provision, however inadequate 
 and precarious; in! Roper, on Husband and Wife, 476, 480, 481, 
 by any terms to which she may think proper to agree before mar- 
 riage. ‘To the same effect is 1 Mad. Chy., 355; Powell on Con- 
 tracts, 53.” 
 
 So, in Prebble v. Boghurst, 1 Sch. and Lef. 319, Lord Eldon 
 said: “A part of the consideration, besides these pecuniary 
 benefits, is marriage. J do not apprehend that the quantum of 
 pecuniary benefit will affect the question; andJ am surprised 
 to find observations about the amount of the penalty, as vary- 
 ing the reciprocity, where marriage is one of the considera- 
 tions. 
 
 But, say the plaintiffs counsel, Siilley v. Folger, until reversed, 
 binds this Court, and that case decides that the agreement must 
 be reasonable. Certainly, what was decided in that case, is 
 binding authority here ; but I have shown that no such point was 
 decided. What was said about reasonableness, was a mere obiter 
 dictum of the Judge who delivered the opinion. He casually 
 used the word “reasonable,” and upon this fortuitous use of a 
 word, the plaintifi’s counsel build their argument, in opposition 
 to an unbroken chain of authorities, English and American. 
 
 But I have no need to quarrel with the dictwm, provided it be 
 
25 
 
 not perverted to mean what the Judge uttering it never intended. 
 What did he intend, assuming that he had a fixed idea, in using 
 the word “reasonable?” Did he mean that the man must make 
 provision for the woman out of his own estate, and that such 
 provision must approximate what she would be entitled to by the 
 statutes of descent and distribution, in the absence of a contract ? 
 This is what the learned counsel are obliged to assume; but so 
 far is it from being warranted by the language of the Judye, that 
 that language gives it an unqualified negative. For the Judge 
 does not require that any provision be made out of the husband’s 
 estate. It is sufficient that it be made out of hers. His lan- 
 guage is: 
 
 “Indeed, we think it may be considered as well settled, at 
 this day, that almost any bona fide and reasonable agree- 
 ment, made before marriage, to secure the wife in the enjoy- 
 ment, either of her own separate property, or a portion of 
 that of her husband, whether during the coverture or after his 
 death, will be carried into execution in a court of chancery.” 
 
 So, according to this very passaye, on which the counsel found 
 their reasoning, the husband’s estate may be wholly laid out 
 of view, and, of course, the extent of it furnishes no rule for 
 determining whether the agreement is reasonable or not. Was 
 it reasonable in"the plaintiff to marry Mr. Ross, with a contract 
 securing to her for life a much more than ample provision for her 
 support? If it was, the contract is binding, according to the 
 language in Stilley v. Folger, and would have been equally so, 
 had Mr. Ross owned the national exchequer. And why not? 
 Why should not parties sui juris, and competent to take care 
 of their own interests, knowing best their own wishes, their own 
 necessities, the demands of their own happiness, and what each 
 is reasonably entitled to ask of the other, be allowed to make 
 their own bargains? What principle of justice or public policy 
 steps in to forbid an adult woman, who, before marriage, has no 
 claim whatever on the estate of her intended husband, from say- 
 ing with what part of that estate will she be content? What 
 adjudication forbids it ? 
 
 The plaintiff’s counsel argue as if the plaintiff, by the ante- 
 
24 
 
 nuptial contract, gave to Mr. Russ $50,000 of her own money 
 for a grossly inadequate consideration. They wholly forget that 
 she had at that time no $50,000 to give; that the $50,000 they 
 speak of belonged not to her but to him ; that she could not ac- 
 quire even a possibility of inheriting it without a marriage; that a 
 marriage even would give her no title, actual or inchoate, to a dol- 
 lar of it; and that notwithstanding the marriage, he could give 
 every cent of it away, or convert it into wild lands, in which dower 
 would be. valueless. 
 
 In the total absence of any case that even tends to support 
 their theory of a reasonable contract, the learned counsel 
 are forced to rely on Gould, Executor of Hayes, v. Wo- 
 mack and Wife, 2 Ala. Rep., N. S., 83; although that case, 
 for reasons that are perfectly clear to the attentive reader, and as 
 the counsel themselves in effect admit in another part of their 
 argument, in no manner whatever tends to support their proposi- 
 tion. That was a case of dower, in which an ante-nuptial con- 
 tract was set up as a bar; and the question was, not whether the 
 contract would not have been a good bar elsewhere than in Ala- 
 bama, but whether, in view of the statute law of that State, it 
 was abar. The Court held that it was not; the ground of the 
 decision, when briefly stated, being, that inasmuch as the legisla- 
 ture of Alabama had not permitted the legal right to dower to 
 be barred by a jointure, (there being no jointure act in that 
 State,) a court of equity could not set up an ante-nuptial con- 
 tract as a bar, unless its provision for the wife was something like 
 an equivalent in value to what would be her dower. Indeed, 
 considering that the law of Alabama did not permit jointures, 
 the Court seem to have doubted whether even such a provision 
 ought to be effectual; for, said they, ‘itis, in effect, saying to a 
 party, you shall do that which the law says shall not be done.” 
 But what would the Court have ruled had there been a jointure 
 act in Alabama, as there is in Ohio? Bearing in mind that they 
 speak of jointure as an “ante-nuptial contract,” (as it is where 
 acceptance is necessary,) let them answer for themselves. On 
 page 92, after stating the rule in respect to the specific execution 
 of ordinary contracts, “that a court of equity will not lend its 
 
25 
 
 aid to enforce a specific performance of an executory contract, 
 unless it is just, reasonable in all its parts, and founded on ade- 
 quate consideration,” they proceed as follows: “ This is doubt- 
 less the general rule applicable to the class of contracts of which 
 we have been speaking, [that is ordinary contracts, ] when sought 
 to be enforced in chancery. As fo the particular kind of con- 
 tracts now under discussion, it has already been shown, that 
 in those countries where the widow is authorized to bar her 
 right to dower at law, by an ante-nuptial contract, courts of 
 chancery, which look at the substance of things, and disregard 
 form, will decree a specific performance, in cases where the pro- 
 vision is inadequate, if it does not entirely fail, because such 
 was the intention of the parties—an intention which the law au- 
 thorized to be carried into execution, which the parties intended 
 to execute, and failed to accomplish, by the omission of some form. 
 These cases, therefore, are,in these courts, excepted from at least 
 one of the rules which enter into the consideration of other 
 contracts, coming under the same general head. In this par- 
 ticular class of cases, mere inadequacy of consideration, 
 though such a prominent objection in other cases of executory 
 contracts sought to be enforced, is not of itself sufficient to 
 preventits execution by the Court.” 
 
 The Court afterwards advert to the rule hereinbefore alluded 
 to, that the jointure that bars an infant of dower must be reason- 
 able, inasmuch as, owing to her infancy, she cannot bar herself 
 by contract ; and then they hold, that as al// women in Alabama, 
 adults as well as infants, are equally disabled in this particular, 
 the rule, in that State, applies to all. They say, page 97: “The 
 result of the cases is, that even where dower may be barred at law, 
 when, in the case of infants, the court of chancery is called on to 
 enforce a marriage contract, it will not interfere, unless the con- 
 _ tract is just, fair and reasonable, on the ground that they are not 
 bound at law. This being the case, where dower may be barred 
 at law, by an ante-nuptial contract, and where, by analogy to the 
 statute, a court of chancery, disregarding form, and looking only 
 to the substance, will enforce any contract which an adult fe- 
 male may make prior to marriaye, with the intention of bar- 
 
 4 
 
26 
 
 ring her dower, NO MATTER HOW INFERIOR TO HER DOWER, yet, 
 in this State, where there can be no legal bar to dower, and where 
 an ante-nuptial contract can only be enforced in chancery, as any 
 other contract which the Court may be called on specifically to 
 perform, its aid cannot be had unless the contract is fair, just and 
 reasonable, in all its parts, even if there be neither fraud nor mis- 
 representation, mistake or surprise, or if the inadequacy be not so 
 great as to be of itself evidence of fraud. Indeed, it may well 
 be doubted, whether this is not carrying the jurisdiction of the 
 Court to the very verge of propriety, as it is, in effect, saying to 
 a party, you shall do that which the law says shall not be done, 
 and can only be defended on the ground of the peculiarity of the 
 marriage relation, the most important of all contracts, and be- 
 cause the parties cannot be placed in statu quo.” 
 
 It is thus apparent, that had there been a jointure act in Ala- 
 bama, the court would have held Mrs. Womack to be barred of 
 her dower, and that it was only because there was no such statute, 
 and that therefore, in that State, marriage contracts stand on pre- 
 cisely the same footing as other contracts in regard to their spe- 
 cific execution, that the court felt bound to let her succeed. They 
 admit, as I have before shown by their own language, (ante, p. 25) 
 that elsewhere marriage contracts are excepted from the rule in 
 respect to adequacy of consideration, and will be enforced, where 
 the woman is an adult, no matter how small may be the provision 
 for her; but in Alabama, for the reasons stated, no such excep- 
 tion is allowed. 
 
 Again: Great stress was laid by the court upon the fact that 
 the contract contemplated a further provision than that specifi- 
 cally named in it. The court say, page 95: ‘It appears, how- 
 ever, that the husband did not propose to his intended wife to re- 
 ceive the small amount of property mentioned in the marriage 
 
 contract, in lieu of dower in his large estate, but held out the idea 
 
 that he would make a further provision for her. By the terms of 
 the ante-nuptial agreement, the intended wife, in consideration of 
 the slaves and other property agreed to be secured to her, relin- 
 quishes all right to his estate, ‘except what he may think pro- 
 per to give her hereafter.’ It is, therefore, proper to consider 
 
27 
 
 whether the provision made in the will, pursuant to the expecta- 
 tion thus created, is fair aud reasonable.” 
 
 I need hardly remark that there is no such feature in the con- 
 tract now under consideration. 
 
 Yet, again: The case, and the reasoning and decision of the 
 | court, related wholly to dower. There is not an intimation any- 
 where in it, that such a decision would have been pronounced in 
 a case relating to personalty. Marriage gives a right to dower, 
 of which the woman cannot be deprived without her consent, and 
 the court grounded themselves in the outset, on the principle that 
 this right is “highly favored at the common law,” (page 94.) 
 But, as I have before shown, marriage gives no such right to per- 
 sonalty, for the husband may, of his own mere will, convert it all 
 into realty, or even give it away, or change his domicil to a place 
 where a widow takes no personalty, unless the husband die intes- 
 tate; which is the law of England and most of the States. 
 
 I have said that the learned counsel themselves admit, in effect, 
 that this Alabama case does not support them; and that I am 
 correct in so saying, I refer your Honor to page 21 of their argu- 
 ment, where they say: ‘‘It is true, in cases of marriage contracts, 
 it is not material how unequal they may be as to pecuniary equiv- 
 alents,” &e. 
 
 But they are far too astute to let this stand without qualifica- 
 tion or an attempt to take this case out of the operation of the 
 rule thus truly stated. They therefore make the attempt, and as 
 I now propose to consider it, I will quote somewhat largely from 
 their argument, to show whatitis. They say: “It is true, in cases 
 of marriage contracts, it is not material how unequal they may 
 be as to pecuniary equivalents, or whether the settlement be recip- 
 rocal, or all on one side, but there marriage is the consideration, 
 and all else is incidental and auxiliary; and all parties in interest 
 _ —the husband and wife, and the issue of the marriage—may set 
 it up in equity, without regard to the pecuniary value of the con- 
 sideration. But these contracts are family settlements ; they are 
 entered into on consultation with friends, and with aid and advice 
 of counsel. But the great distinction between those contracts and 
 this is, that they are marriage contracts, properly so called, ex- 
 
; 28 
 
 pressed to be entered into in consideration of marriage, while this 
 is no marriage contract, either in name or in fact. Marriage is 
 no part of the consideration on either side, but the money and 
 property covenants of the one are the expressed consideration for 
 the like covenants of the other, and must therefore be fair -and 
 equal, like all other money covenants, to enable a court of equity to 
 sustain them. Like the covenant in the case of Stilley v. Folger, 
 14 O. R. 647, it is an ante- -nuptial contract merely, and the rule 
 laid down by the Supreme Court of Ohio, in that case, must be 
 applied to it. The court say: ‘It must be entered into bona 
 Jide, with a full knowledge of its consequences, and, under the cir- 
 cumstances, make reasonable provision for the wife, or equity will 
 not permit it to be set up as an equitable estoppel.’ 
 
 “This is not only in accordance with the reason of the case and 
 with the whole current of authorities, but it is, until it shall be 
 overruled, the law of Ohio, binding on her courts. 
 
 ‘We have a right, then, to enter into the question of the ‘rea- 
 sonableness of the provision,’ under the circumstances ; all other 
 questions going to the validity of ordinary contracts, it is admit- 
 ted, are open for inquiry. There is nothing, then, to distinguish 
 the application of the rules of equity to this, from their applica- 
 tion to ordinary contracts.” 
 
 The whole of this reasoning rests upon’ the assumption that 
 marriage was no part of the consideration of the contract in ques- 
 tion, because, as the counsel say, it is not so expressed in the 
 contract, and also because it was not “ entered into on consulta- 
 tion with friends, and with aid and advice of counsel.” They 
 cite no authority to sustain this proposition, and I confidently be- 
 lieve that no case whatever can be found, that, in the least degree, 
 tends to support it. I have looked at scores of marriage con- 
 tract cases without finding one such case, and if one could be 
 found, I am sure that the industry of the learned counsel would 
 certainly have discovered it. Nor is there any thing in the text 
 books that in the least favors the proposition. On the contrary, 
 both judges and text writers uniformly treat marriage as the prin- 
 cipal consideration of all such contracts. ‘All marriage agree- 
 ments,” said Lord Hardwicke in ex parte Marsh, 1 Atk. 158, 
 
29 
 
 “ differ from other agreements ; for these do not arise from the 
 consideration of a portion only, but on account of the marriage.” 
 
 As to the expression of the consideration, it 7s sufficiently 
 shown by the contract that marriage is a part of it; but were 
 it not so shown, what then? When did it become the law that 
 the consideration of any contract, certain unsealed guaranties ex- 
 cepted, must be expressed in it? Is it not familiar law, that in 
 no contract, except in such guaranties, is it necessary to express 
 the consideration, and that it is only necessary in their case, be- 
 cause of the statute of frauds. (See 3 Kent’s Com. 121, 122, 
 123, margin; 2 Parsons on Con. 294—297 and notes.) And 
 even in respect to them, it “is, undoubtedly, the prevailing rule, 
 that, although the consideration be not named as such, if it can 
 be distinctly collected from the whole instrument what it really 
 was, this satisfies the statute.” 1 Parsons on Con. 297. 
 
 “The consideration may be collected from the whole instru- 
 ment, and may be inferred from its character as well as its terms.”’ 
 Ibid., note (2). 
 
 But in Ohio, and divers other States, even guaranties are no 
 exception to the gencral rule, that the consideration need not be 
 expressed. See note, supra, and Reed v. Evans, 17 O. R. 128. 
 
 As to the general rule itself, a citation of authority is surely 
 unnecessary ; but as it is very tersely stated in 1-Parsons on Con. 
 355, note (v), where he treats of the requisites of contracts, I 
 quote his language: ‘‘ The consideration, however, need not be 
 expressed in the writing. It may be proved aliunde” And see 
 Tingley v. Cutler, 7 Con. 295, and Powell on Con. 368. And 
 we have seen, supra, that it may be inferred from the character 
 of the transaction. 
 
 Again: This contract is under seal, which, of itself, imports a 
 sufficient consideration, and dispenses with proof of it. If, there- 
 fore, marriage were necessary, as a part of the consideration, in 
 order to support the contract, the seal imports that it was a part 
 of it; there being nothing in this legal presumption that is repug- 
 nant to the instrument. The burthen of proof, then, is on the 
 plaintiff, to show that marriage was no part of the consideration — 
 ‘and she makes no such proof. 
 
30 
 
 On page 2 of their argument, counsel say: “ Marriage was no 
 part of the contract. The parties do not thereby bind them- 
 selves to marry, but recite that, ‘intending to become husband 
 and wife,’ they have agreed,” &c. ; and hence they infer that mar- 
 riage was no part of the consideration, but merely the “cause” 
 of the contract. 
 
 Now, I hazard nothing in saying, that the counsel never saw, 
 and I believe never will see, a contract, in which there was a cov- 
 enant to marry. There are plenty of such contracts set out or 
 stated in the books, and if any one contains such a covenant, or 
 Stipulation, I would like to see it. Let us turn to a few of the 
 cases: it would extend this argument unreasonably to refer to 
 many. 
 
 In Cannel v. Buckle, 2 P. Wms. 243, a woman “gave a bond 
 of 200/. penalty to the intended husband, in which the intended 
 marriage was recited, and the condition was, that, in case the 
 marriage took effect, she would convey all her said lands to the 
 husband and his heirs.” 
 
 Now, mark! counsel say : 
 
 1, That the contract in question contains no covenant to marry. 
 Neither did the above bond. 
 
 2. That marriage is not expressly stated as a consideration. 
 Neither was it inthe bond. 
 
 3. That the intention to marry is only a recital. So it was in 
 the bond. 
 
 And observe the further parallel: The contract under conside- 
 ration expressly depends upon “the event of [the parties ] becom- 
 ing husband and wife.” And so was the bond, “ that in case the 
 marriage took effect.” 
 
 Upon tbe theory, then, of the learned counsel, this bond was ° 
 not a marriage contract, nor was marriage any part of its con- 
 sideration. 
 
 But what said Lord Hardwicke, the greatest chancellor Eng- 
 land has produced? This: ‘The impropriety of the security, 
 viz., a bond from a woman to a man whom she intends to marry, 
 or the inaccurate manner of wording such bond, is not mate- 
 rial ; for it is sufficient that the bond is written evidence of the 
 
31 
 
 agreement of the parties ; that the feme, IN CONSIDERATION OF 
 MARRIAGE, agrees the man shall have the land as her portion ; 
 and this agreement, being upon a valuable consideration, shall 
 be executed in equity.” 
 
 In Andrews v. Andrews, 8 Con. 19, the contract was in these 
 words ; ‘‘An agreement between. Mr. Daniel Andrews, of Win- 
 ' chester, and Mrs. Jemima Copps, of Colebrook. Mr. Andrews 
 agrees to take and support Mrs. Jemima Copps, during his life- 
 time, and find her with necessary clothing. At his decease, she 
 is to return to her own house. She is not to take any more prop- 
 erty to the said Mr. Andrews’ than she pleases ; and she is not to 
 bring any of Mr. Andrews’ property away, at his decease. Mr. 
 Andrews agrees to let Mrs. Copps make what cloth she pleases. 
 He agrees to do the carding and weaving; and she is to have 
 one-half she makes, to dispose of as she pleases.” 
 
 Now, here, so far from there being a covenant to marry, or a 
 statement of marriage as a consideration, there is not one word 
 about a marriage in the agreement. But, said the Court: “That 
 the agreement was not founded upon a sufficient consideration, 
 cannot be contended. Marriage itself is a valuable considera- 
 tion. Besides, the husband relinquished all the rights, which, by 
 the marriage, he might have acquired over the estate of the wife. 
 This furnishes a decisive answer to the alleged want of conside- 
 ration, and would be equally conclusive upon the objection of in- 
 adequacy.” 
 
 So, in Sellick v. Sellick, 8 Con. 85 note (a), the contract was 
 like the present one, “that should the marriage take effect,” &c. 
 The case is thus stated: ‘James Sellick, at an advanced age, 
 married a second wife. Previous to the marriage, and in con- 
 templation thereof, an agreement, in writing, was entered into be- 
 tween the parties; by which it was stipulated, that should the 
 marriage take effect, and the wife survive her husband, his execu- 
 tors should pay to her, within four weeks after his decease, the 
 sum of 100 dollars, in full of all claims which she might have on 
 his estate, in virtue of the marriage. This sum, the intended 
 wife, on her part, agreed to receive in lieu of dower, and in full 
 satisfaction and discharge of all claims, which she, by virtue of 
 
32 
 
 the marriage, might have upon the estate of her intended hus- 
 band. The marriage took effect; and in 1808, James Sellick 
 died, leaving his widow surviving. At the time of his death, he 
 owned a real estate of the value of about 6,000 dollars.” 
 
 Here is no covenant to marry, no express statement of mar- 
 riage as a consideration, a money consideration shown, and the 
 provision but one-sixtieth of the value of the realty, to say 
 nothing of the personal estate. But the Court barred the widow. 
 
 Gelzer v. Gelzer, Bailey’s Eq. Rep., 388 deserves particular 
 attention. It was argued by very able counsel, first decided by 
 that eminent Chancellor, De Saussure, and his decree unan- 
 imously affirmed by the Court of Appeals. The agreement is 
 thus stated in the opinion of the latter court: ‘The agreement, 
 out of which the question arises, was entered into before, and in 
 contemplation of the marriage between the complainant, then 
 Sarah Lewis, and the intestate, Thomas Gelzer; and it recites, 
 that the said complainant had, ‘in her own right, an ample estate 
 entailed and secured to her, of which the said Thomas would not 
 take any benefit after her death;’ tn consideration whereof, 
 and of the nominal payment of one dollar, she covenants and 
 agrees, that, if the said Thomas should die, she surviving, ‘she 
 will not have, claim or demand, or pretend to have, claim or demand, 
 any dower, or thirds, or any other right, title, interest, claim, or de- 
 mand, of, in or to any of the messuages, lands, tenements, and real 
 estate whereof the said Thomas may have been seized during the 
 intermarriage aforesaid.’ ” 
 
 Here is a case in which a consideration for the woman’s cove- 
 nant is expressed, to wit: that she had an estate of her own, in 
 which her intended husband would take no benefit after her death, 
 and the nominal sum of one dollar. Marriage is not stated to be 
 a part of the consideration, nor is there any covenant to marry. 
 But the Court had no difficulty in finding that marriage was a 
 part of the consideration. They said: ‘‘The complainant was 
 of full age, and under no legal disability to contract ; the subject 
 matter was legitimate; and the consideration of marriage is 
 sometimes said to be the highest known to the law, and I con- 
 fess that I have not been able to discover any rule, or principle, 
 
33 
 
 which discharges her from the obligation which this agreement 
 tmposes. She had an ample fortune of her own, so tied up, that 
 she could not confer it upon her husband ; and, in consideration 
 that he would take her in marriage, she agreed not to claim 
 dower, or any right of inheritance in his estate. It is a contract 
 without fraud, and apparently of perfect equality. Both Atherley 
 and Roper treat this question as one admitting of no doubt.” 
 
 She agreed, said the Court, “in consideration that he would 
 take her in marriage,” although no such consideration was ex- 
 pressed, and there was a consideration stated in which not a word 
 was said about marriage. And the contract, said the Court, was 
 “apparently of perfect equality,” although no provision whatever 
 was made for the woman. . 
 
 But upon this point, I desire no better authority than the Ala- 
 bama case upon which the learned counsel so much rely. ‘The 
 contract in that case was in these words : “ Articles of marriage 
 contract, entered into this day, between George Hayes and Anne 
 M. Bevil, this 24th day of December, 1832. Whereas, Anne M. 
 Bevil relinquishes all claim or claims whatever to any of the real 
 or personal estate of the aforesaid George Hayes, so that the 
 said George Hayes, can sell, or otherwise dispose of the same, 
 without any relinquishment of dower by the said Anne M. Bevil; 
 nor can she have any claim or demand whatever to any part of 
 the said Hayes’ estate, except what he may hereafter think proper 
 to give her. But in case the said Anne M. Bevil should survive 
 the said George Hayes, then, in that case, she is hereby secured 
 the possession of ten negroes, worth, at this time, three hundred 
 dollars each, and one section of land of medium quality ; four 
 hundred dollars worth of stock, to consist of horses, cattle and 
 hogs, at a fair valuation, and corn, and other provisions, sufficient 
 to make a crop with, so as not to exceed three hundred dollars in 
 valuation ; and the above property is hereby secured to the said 
 Anne M. Bevil, that it cannot be sold, or otherwise disposed of, 
 by her or any other person or persons whatsoever. Should she 
 have a child or children at her decease, they are to have the entire 
 property, together-with its increase, free of any incumbranees, 
 This instrument is to remain good in law and equity. In wit- 
 
 5) 
 
34 
 
 ness whereof, we have hereunto set our hands and seals, the day 
 and date above written. 
 “GrorRGE HaAYEs, [SEAL. | 
 ‘ANNE M. BEvIL, [SEAL. ]” 
 
 Here is no covenant to marry, nor even a recital of an inten- 
 tion to marry; and as to consideration, the only one expressed is 
 strictly pecuniary; yet, as I have shown, had there been a jointure 
 act in Alabama, as there isin Ohio, the court would have specifi- 
 cally enforced the agreement, and barred the widow. They would 
 have followed the decisions to which they have referred and the 
 others that I have cited, and held that however inadequate the 
 pecuniary consideration, the marriage consideration was sufficient 
 to uphold the contract. 
 
 Let us now turn to our own reports. 
 
 The first case on the subject is Stilley v. Folger. The agreement 
 in that case recited a contemplated marriage, a desire of the parties . 
 respectively to keep their own property, and then followed property 
 covenants by each—all in striking similarity to the present case. 
 But it contained no covenant to marry, nor any express statement 
 that marriage was of the consideration. And yet the court sus- 
 tained it. But the plaintiff’s counsel intimate, if I understand 
 them, that marriage was not a part of the consideration of that 
 agreement. Where they got this idea, I do not know; they cer- 
 tainly did not get it from anything that was said by counsel or 
 court in that case, for by neither was any such thing hinted. The 
 case was argued for the widow with great learning and ability, but 
 it never entered into the head of her counsel, that marriage was 
 not a part of the consideration; nor into the minds of the court 
 either, for they, in general terms, refer to and approve the de- 
 cisions affirming the validity of ante-nuptial contracts, in which, 
 as we have seen, marriage is uniformly treated as constituting the 
 chief or entire consideration. 
 
 The next case is Scheferling v. Huffman, in which the agree- 
 ment contained no promise to marry, nor any express statement 
 of marriage as a consideration; and there were property stip- 
 ulations on both sides. But the court sustained it. 
 
35 
 
 The remaining case is. Hardy v. Van Harlingen, in which no 
 covenant to marry, or express statement of marriage as a consid- 
 eration, was in the agreemeat. Yet the court upheld it. 
 
 I might easily multiply cases on this point, but I have already 
 unnecessarily extended my remarks uponit. I repeat, that no case 
 can be found in which it is said, or intimated, that it is necessary 
 that the contract should contain a covenant to marry, or should 
 state in express terms that marriage is its consideration. The 
 cases all go upon the ground, that whatever the terms of the in- 
 strument, marriage is the chief, and, frequently, the only conside- 
 ration. As said by Parsons, supra, the consideration is inferred 
 from the “character” of the instrument as well as its terms, and 
 as laid down by Lord Hardwicke, in Cannel v. Buckle, supra, 
 “the inaccurate manner of wording” the contract ‘is not mate- 
 rial,” for it is sufficient that the contract itself, however worded, 
 is evidence of an agreement ‘‘in consideration of marriage.” 
 
 Indeed, in the very nature of things, the marriage enters into 
 the consideration, for the contract treats solely of rights whose 
 very existence is dependent upon the marriage, and the marriage 
 itself is the act of the parties. It is not the case of rights cre- 
 ated by an act of third persons, or over which the parties have no 
 control; but the agreement to marry, the marriage contract, and 
 the marriage, are the voluntary doings of the same persons, and 
 are inseparable. They are all parts of the same transaction. 
 
 I do not understand the plaintiff’s counsel as arguing that mar- 
 riage is no part of the consideration because the engagement to 
 marry preceded the contract. But my associates having antici- 
 pated such an objection and answered it, I will add a few words 
 upon it. It is obvious that in most, if not all, eases, the engage- 
 ment precedes the contract, for it would be an extraordinary pro- 
 ceeding for people to enter into a marriage contract before they 
 agreed to marry, or to make the agreement and execute the contract 
 at the same time. I have never heard of such a case, and nothing 
 of the sort has been produced. Under peculiar circumstances, 
 the engagement to marry and the agreement to execute a mar- 
 riage contract may take place at the same time, as I think I have 
 
36 
 
 abundantly shown was the case here; but the actual execution of 
 the contract takes place afterwards. Yet we nowhere find it inti- 
 mated in the books, that marriage does not enter into the consid- 
 eration of the contract, or that such a consideration would not 
 support it. They are, as before said, all parts of one transaction; 
 but were it otherwise, yet the agreement to marry would enter 
 into the consideration. or valid considerations are either past, 
 cxecutory, concurrent, or continuing, (Chitty on Contracts, 61— 
 64) and either is sufficient. There are some past considerations 
 that are merely moral, and from which no legal liability followed, 
 that are not sufficient; but this case is not of that character. But 
 even in that class of cases, if the past consideration is beneficial to 
 the promisor, and he assent to it, it supports his promise. — Doty v. 
 Wilson, 14 J. R. 378. And that marriage is esteemed in law 
 beneficial, will not be controverted. It is unnecessary, however, 
 to argue this question, for it is expressly settled by authority, that 
 marriage is a continuing consideration. 
 
 Thas, in Stdenham v. Worlington, 2 Leon. 224, the court said: 
 “Marriage is always a present consideration.” 
 
 So, in Baber v. Halifax, Cro. Eliz. 471, the court say: “An 
 assumpsit in consideration that you had married my daughter, to 
 give you £40, is good, for the affection and consideration always 
 continue.” 
 
 And in Townsend yv. Hunt, Cro. Car. 408: “If it had been 
 a consideration continuing, as in consideration of marrying his 
 daughter or cousin, which is a gift in frankmarriage, it had been 
 good.” 
 
 And see Jfarsh v. Rainsford, 2 Leon. 111; Bacon’s Abr. As- 
 sumpsit D., and Chitty on Contracts, 5th Am. Ed. 64, where, 
 treating of what are continuing considerations, he says: ‘So, 
 marriage is a continuing consideration.” 
 
 In speaking of marriage contracts, of which they admit mar- 
 riage to be the consideration, the plaintiff's counsel say: ‘ But 
 these contracts are family settlements ; they are entered into on 
 consultation with friends, and with aid and advice of counsel.” 
 Do my learned friends mean to assert by this that a settlement 
 
3 lard 
 37 
 
 by a father, mother, brother, sister or other relative, is necessary 
 to constitute a contract of which marriage is the consideration ? 
 If so, I have only to refer your Honor to the numerous cases I 
 have cited, in which there was no such settlement, and yet mar- 
 riage was held to be the consideration. But I can hardly sup- 
 pose that so unheard of a proposition was seriously advanced. 
 Indeed, if they mean that any settlement is necessary to consti- 
 tute a marriage contract, they are mistaken, as some of the cases 
 already cited, and many others, abundantly show. <A settlement 
 proper upon a woman is where property, not her own, is limited 
 to her or for her use; in the language of the court, in Hardy v. 
 Van Harlingen, 7 O. 8. R. 212, it is the instrument “by which 
 the wife originally acquired the estate.” But if the contract 
 merely secure to her her own estate, it is not, strictly speaking, a 
 settlement ; but it is, nevertheless, a valid marriage contract, and 
 marriage is the consideration. ‘That was precisely the case of 
 Hardy v. Van Harlingen, and marriage was the sole considera- 
 tion. It is the same if the parties be reversed, and it is the 
 husband’s property that is secured to him. Such were the cases 
 of Andrews v. Andrews, and Ge/zer v. Gelzer, supra. 
 
 The contract under consideration has both features. It secured 
 to the wife her own property, and made a settlement upon her 
 out of the estate of the husband. So, even upon the theory of 
 the learned counsel, marriage might be its consideration. 
 
 Nor could counsel have seriously meant to say that it is essen- 
 tial to the validity of a marriage contract, that it be “entered 
 into on consultation with friends, and with aid and advice of 
 counsel,” for such a doctrine would have overturned a large ma- 
 jority of the contracts that have been upheld by the courts. 
 The absence of such consultation, aid and advice, has sometimes 
 been referred to, where the contract was assailed on the ground 
 of fraud or improvidence, but never as constituting, per se, a 
 fatal objection to it, or to show that marriage was not the con- 
 sideration. This is strongly illustrated by the case of Stilley v. 
 Folger, in which it was urged by the plaintiff’s counsel, that “the 
 woman with whom the contract was made can neither read 
 nor write. There is no evidence that it was explained to her; 
 and, instead of being surrounged by her own friends, or by the 
 
38 
 
 officers of the law, she executes it under the eyes of a son and 
 sister of her future husband, and in his house. What an op- 
 portunity for fraud!” This statement of the case was not denied 
 by the adversary counsel or the court; indeed the court added 
 to it the fact that Obed Folger, a son of the intended husband, 
 and who was interested in keeping unincumbered the property 
 that he would probably inherit, ‘“ guided the hand of Mrs. 
 Stilley, when she signed” the contract. Nevertheless, the court 
 enforced it. 
 
 I have thus demonstrated, I humbly submit, that marriage does 
 enter into the consideration of this contract, that it does not 
 stand upon a pecuniary consideration alone, and that no authority 
 has been, and, I venture to say, none ean be, produced that declares 
 such a contract to be unreasonable. And, having done so, I 
 might well enough cease to consider this point; but as the char- 
 acter of Mr. Ross has been vehemently attacked; as he is held 
 up to your Honor as a man who “had not a just moral appre- 
 ciation of what was due from him” to the woman he was about 
 to marry; as we are told that he improperly obtained from her a 
 contract that ‘‘ was grossly unequal ;” and that he was “exactly the 
 man who could perceive no moral wrong in obtaining over her the 
 advantage which he did obtain, in the manner in which he ob- 
 tained it;” and as these charges are made on behalf of one 
 who, it might not unreasonably be supposed, should be the first 
 to defend his memory, I trust that I will be pardoned if I dwell 
 a little longer upon the subject. 
 
 Now, may it please your Honor, Mr. Ross was no such man as 
 he is here represented. He was, I admit, what it would be well 
 for more of us to be, a man who, in a preéminent degree, consulted 
 the dictates of his judgment, and was not to be deterred from 
 doing what was right by a fear of being considered illiberal. He 
 was a man who would have given pounds to a charity that his 
 reason approved, if satisfied that his bounty would be properly 
 applied; but not a shilling for an object that his judgment con- 
 demned, though all the world had been ready to cry out shame. 
 But he was, in the highest sense of the term, a man of integrity, 
 
 ” 
 
39 
 
 and his friends might safely challenge all who knew him to 
 point out a single individual that he ever wronged out of a cent. 
 In the extremity of their necessities, the plaintiff’s counsel have 
 alluded to his tax lists, as if they had been made out by 
 him; as if they were not, as we all know, the sole work of 
 the assessors; as if it were not notorious, that ninety-nine out 
 of a hundred of the lists of moneyed men throughout the State 
 were and are made out in the same way; and as if the just 
 amount of taxes paid by an individual depends upon the abso- 
 lute, instead of the relative, correctness of his list. Let the 
 learned counsel show that the capital on which Mr. Ross was 
 taxed, was not the just proportion of the duplicate which his 
 wealth bore to the wealth of the State; that lands and town lots 
 were not appraised at less than their value; that all chattel prop- 
 erty was correctly appraised ; and that every individual but him- 
 self gave in a full list of his moneys and credits —let them do 
 this, and they may reproach him at will with not discharging the 
 duty of a citizen. But until they do this — until they show that 
 it is dishonest to do that which the law expressly permits —name- 
 ly, suffer the assessor to make out your list — until they are ready 
 to denounce as wanting in a sense of moral obligation, the thou- 
 sands and tens of thousands of citizens who annually thus suffer the 
 law to take its course — it will not do for them to assert that Mr. 
 Ross was not “a strictly scrupulous man,” and that he defrauded 
 the State. Ifthe truth could be ascertained, I have no doubt it 
 would be found that he paid his full and just proportion of taxes; 
 but, be this as it may, there is not a tittle of proof to justify a 
 charge that he willfully evaded doing so. 
 
 With the character of Mr. Ross, the plaintiff was thoroughly 
 acquainted —no one more so; and with him, she—a sagacious, 
 practical-minded, business woman, of more than ordinary intellect 
 and experience — made the contract in question. What may we 
 reasonably suppose were the thoughts, if not the language, of the 
 parties on that occasion ? Doubtless something like this: “We 
 are both far advanced in life. Jane’s health is infirm, and her 
 chance of survivorship is scarcely, if at all, better than William’s. 
 
 * 
 
40) 
 
 The probability of a long survivorship is extremely remote. We 
 
 have been economical all our lives, until economy has become a 
 habit; and it would not contribute to our happiness to be other- 
 wise. Neither of us has been accustomed to live fashionably or 
 expensively, nor do we desire to do so. Jane has an estate of her 
 own that has been amply sufficient for her comfortable and decent 
 support, and no change of social position, requiring an increased 
 expenditure, is contemplated by either of us. But William is 
 able, and ought to make such provision that her support, if she 
 survive him, shall not be precarious. It ought to be amply suffi- 
 cient to supply all her necessities and comforts; and for this pur- 
 pose he should let her retain her own means and add something 
 from his. But he is not bound, after making this provision, to 
 divert his property from his own kindred to give it to hers.” 
 
 Such, I feel warranted in inferring, were the thoughts of the 
 parties; and to these we are to add the further considerations, 
 that the most of his property was personalty, to which marriage 
 would give her no right, over which his power of disposition du- 
 ring life would remain absolute, and that of his real estate he gave 
 her, not the use of a third which would be her dower right, but 
 the use of nearly all. 
 
 And now, may it please your Honor, has she this ample sup- 
 port? That she has, it is only necessary to glance at the follow- 
 ing tables, in which, I may remark, that the extent and value of 
 her own estate, and the rents of her realty, are set down from her 
 brother’s testimony : 
 
 fT Neg oe Wags FF 
 
 THE PECUNIARY ADVANTAGES TO HER OF THE MARRIAGE. 
 
 At marriage, Mrs. Ross owned— 
 
 Personalty—exclusive of house-hold furniture, &e.........4 eae $4,250 00 
 Realty—Her dwelling: and lot........... cccseeeas covers veeeee 4,000 00 
 One-half Paint Stréet Store, .....1 scvoccssaescsen sue 2,000 00 
 One-half Foundry,......... sevens es Nadstase sheweneetns 1,500 00 
 
 — 7,500 00 
 
 $11,750 00 
 
41 
 
 The income of which, excluding her dwelling, may be estima- 
 ted as follows : 
 
 $4,250 personalty BELO MDOTE CON Wenecsae dele sasaki. cpvde ceseeudecececs sake $255 00 
 Her one-half of the rent of the Paint Street Store........... Reena 200 00 
 e i. “ia SPOPOOUELEY OG re , pa seenek dacdee aca verve sn 90 00 
 
 All this was allowed to accumulate for her benefit. Therefore, 
 calculate, 
 
 POP ONAIEY BH ADOVE.ccisvevcscia cocks ssdeeccoses sosses sevess $4,250 00 
 255 00 int. 
 
 PSDMVOAN EecetceceverierelleOtenisce ivelitesiddtyd ares scineleeesce cases 4,505 00 
 270 30 int. 
 
 DEMME Geleeeh snc. Ses ica ds scales ides dda ev seas cee 5,061 82° | 
 303 71 int. 
 
 Se MRNEY Seats ah vei sevz stan ach ktav esas sietioactsliss vavevooveeees 5,365 53 
 321 93 int. 
 
 RY RRT seep Papk Seas hacen ek panes Ge bvcacoesy nase vecnaneadeel 5,687 46 
 341 25 int. 
 MPR OMENS Ses weStt et Ke sav agsese Socdeds Saas eeokrceea ode ish 6,028 7] 
 
 361 72 int. 
 PURIEVGAT 633015 (uissex dues RameBveavVh eV ours, vive idiiad cokasaare «ie 6,390 43 
 383 42 int. 
 
 BO a orcs ints fev octasvnagshs 0 chossdeenevaaseeces co 6,773 85 
 406 43 int. 
 
 De trate eet feos ks 05 ss io vyied to se Dekh cehdic as daas 7,180 28 
 430 82 int. 
 
 BRM erway cntsias5 2h v sncevsalacisdveaased she Sévesc shcdus site 7,611 10 
 Deduct the capital ........ Por rukey rterrer cher 4,250 00 
 ECON cds sdaves a eeaelitge cates trae vane By davaes aenae $3,361 10 
 
PSUMY CALS TON Usarescsieces censeisoeessesemactecenien danieastereets 290 00 
 
 17 40 int. 
 PFW ORLA: FONG J 5 wosngats occevsnt aaseeteua carers a meneeanee 
 
 35 84 int. 
 3d year's rent..... sede oavres ce Gap epiewaele diac aveceoeenree sewetee 290 00 
 
 923 24 
 55°39 int. 
 Ath “Your's: TENt sv cnseas gece ssscus saris gaa eok pecan yam dnnine 290 00 
 1,268 63 
 76 12 int. 
 Bth Veariserentine.stenaaeraneniseenesy eh cett reer reece utes 290 00 
 
 1,634 75 
 
 : 98 08 int. 
 GU VASE BITONE 0.) scsecsevacanaylesense'cacnonensucaamecnatlosent 290 00 
 2,022 83 
 
 121°-36"int. 
 TED VORI'S, TEDL os <roovegansoncan cites seonts qnesen accent seecee 9200 OM 
 2,434 19 
 
 146 05 int. 
 8th year’s rent ........ par avesndesaecovenduncceenecene masses 290 00 
 
 2,870 24 
 
 172 21 int. 
 9th year’s rent ...... Sopan swears ghanwn SsahiUbexe sceeretateme . 290 00 
 3,332 45 
 
 199 95 int. 
 
 LOG: “VOar’S’ TOME... is.0soes oocnnnise ects Voanst aatrweagamaas nants 290 00 
 Profits of her real estate allowed her...............060 0 $3,822 40 
 Her dwelling that was burned was worth not OVEP....... sseeee sence 2,500 
 Mr. Ross built the new house at & COSt Of OVE ....c. sevcce soccoe des ses 8, 000 
 The increased value, then, put upon her property was about! resets 6, 000 
 
 Year's support allowed by appraisers, cash...............$1,000 
 
 And chattels not less Ghan.., .<..tvsavssedeak apotnteeakaacoeel 500 
 1,500 
 Articles not deemed assets and set off to her not appraised, but 
 estimated at-not lesa,than 0: <isad.-.dance: «cause ne teaetanneannmes ere $350 00 
 Devise to or Wiles, soncoesan oconecads sandy en tesnnaieiauenns cant tetenee ee 10,000 00 
 “  % & of Personalty absolutely......... catianaaness sousabesauna 400 00 
 
 $10,750 00 
 
43 
 
 Devise of life estate in about $1,000 of personalty. See in- 
 
 ventory. 
 So the pecuniary profits of the marriage to her were : 
 The interest aforesaid on the $4,250...........600 60s Teeaensetreatns lesees 3,361 10 
 HACOULSTATOLOSAIC (Ole MEL TEAL CSTALC... 00 voacse oeeren veseseliscassiesecooses 3,822 40 
 PEEP ONE: BET VOIUIG OL WON 5.55 ccsccc vevccs cacsee scenes cogeenesacen ons 6,000 00 
 PESE RUD TOLUmecs ceciiet curs ancas tet sees etancassteecersecairacous oeeesacssenese 1,500 00 
 PAWIING CRA OGEASROUG oe tese seuvenser seas edenjvecebslacpscaiceness sacces se eessiastane 350 00 
 MPN ONDE CHS Beran ctrcatectitrss eclenecesisqoaaeiese tide ste aecesscsssecidectes'sone 10,000 00 
 Bee te HOTHOTIGILY ADEGIULCLY 260. <aiccccenorscuc veeveresoese ie areas 400 00 
 
 $25,433 50 
 And her life estate in $1,000 of personalty. 
 
 eA Debio Buk. 
 HER PRESENT ESTATE. 
 
 Her property at the time of his death, supposing her to take 
 according to the contracts and will— 
 Realty—Dwelling house property..........sseeeeseeeeeseeeee $10,000 
 
 One-half Paint Street property..........ssecce cesses 2,000 
 One-half Foundry property ...........ss0esseeeecoeees 1,500 
 
 $13,500 00 
 Personalty—Her $4,250, with the accumulated interest.$7,611 10 : 
 Accumulated profits of her real estate, 
 
 (dwelling excluded), during coverture.. 3,822 40 
 
 Year's support allowed by appraisers ....... 1,500 00 
 
 Articles not deemed assets set off toher... 350 00 
 
 Pee OU COME Deccan diedat eased tcsvesactone -0en 10,000 00 
 
 “of personalty absolutely .......... 400 00 
 $23,683 50 
 
 Total of real and personal estate.............00sserceseceresesee eee $37,183 50 
 
 To which is to be added her life estate in personalty, appraised at 
 _ about $1,000. 
 
 PA Die EET. 
 
 HER INCOME. 
 
 Realty, excluding dwelling house— 
 
 Rent of one-half Paint Street property. ..........ceceeeee $200 00 
 Rent of one-half of Foundry............. 006 saath seen hasekes 90 00 
 $290 00 
 
 Personalty—Her $4,250 and accumulated interest..:.$7,611 10 
 The accumulated rents of her realty 
 
 GOCE COVOMMTO Ks. vesvesescveevsceniees vane 3922540 
 
 MPS RIP AE EHRIN sSavas sv ipnesateUent ioe thccdeas ce 10,000 00 
 
 $21,433 50 
 
44 
 
 She has thus a capital of $21,433 50 (exclusive of the other 
 provisions aforesaid for her) of personalty to invest for in- 
 
 come, which, at 6 per cent. per annum, produces..........0. +. $1,286 00, 
 Add rents of real property a8 above.........ssc0 cesses cesses cocore svses 290 00 
 Annual income ....... Raltosviosen epeee eee elec weceal paebeeters $1,576 00 
 
 Besides which, she has a dwelling house, fully furnished, and 
 other provisions as aforesaid, amounting to about $2,200. 
 
 Including the value of the use of her dwelling, as should be 
 done in estimating her means of support, and these means are 
 annually at least $1,800. 
 
 If her capital above mentioned ($21,433 50) is invested at 10 
 per cent., instead of 6, which is probably nearer the mark, her in- 
 come, exclusive of the use of her dwelling, is $2,333 35, and in- 
 cluding that use not less than $2,550 per annum. 
 
 Now in view of the facts presented by these tables, with what 
 justice, I ask, is Mr. Ross denounced as he is? Is it true, that 
 after adding over $25,000 to her estate, and securing to her an 
 income greater than the salary paid to any officer in Ohio save one, 
 an income greater than that upon which nine-tenths of the fathers 
 in Ohio support their families, an income twice as large as is neces- 
 sary to provide for all her wants and all her comforts, he yet de- 
 serves the stigma of being insensible to moral duty and capable of 
 defrauding the very wife of his bosom ? And are $37,000 so small 
 an estate, and from $1,800 to $2,500 per annum so insignificant an 
 income, for a single woman of plain habits and in the decline of 
 life, that it is necessary to overturn the solemn contract of the 
 parties, and add a quarter of a million to her means, in order to 
 make her ‘a reasonable provision ?” 
 
 Counsel refer to the testimony of Mrs. McLandburgh on this 
 subject, and I sincerely thank them for doing so; for what was 
 the opinion of that very sensible woman, the friend of both 
 pazties and the aunt of the plaintiff? Did she think the agree- 
 ment grossly unjust, and indicative of a heart insensible to 
 
 “horal obligation? That she did not, is apparent from the facts 
 that she never warned her neice against it, that she never intimated 
 that the provision was not adequate, and that her sole objection 
 was limited to a suggestion to Mr. Ross, that, inasmuch as the 
 
+5 
 
 plaintiff would not have the corner property until after his death, 
 he ought to pay rent for her realty, if he used or occupied it; an 
 “dea that was not acceptable to him, as he thought a man ought 
 not to be the tenant of his wife—meaning, no doubt, that it was 
 not advisable that they should have accounts to keep with each 
 other. In this he was right, and what he said indicated no dispo- 
 sition to be unjust towards the plaintiff; on the contrary, there 
 is no reason to believe that he would not have respecttully list- 
 ened to a suggestion of inadequacy, and, if convinced that the 
 provision for the plaintiff was not adequate, would have made it 
 adequate. But no such suggestion was made, for there was no 
 room to make it; and so, without objection by the plaintiff or her 
 friends, the contract was executed. Now, a contract in which 
 the affection of a relative could discover no greater defect than 
 that suggested by Mrs. McLandburgh, may safely be assumed to 
 be fair and reasonable; and that Mr. Ross’ reasons for not 
 acquiescing in the suggestion were those above mentioned, may 
 be inferred from the fact that he never touched a dollar of her 
 rents, but allowed her to receive them all; and as to her dwelling 
 house, he gave more than four-fold what would have been a fair 
 rent, by erecting the new dwelling. 
 
 The plaintiff’s counsel say: “By the answer and by the 
 evidence, it sufficiently appears that the parties had been for 
 many years so far contracted in marriage that the petitioner, 
 at any time, might have recovered damages at law for a failure to 
 execute it. She was entitled to the marriage, and the public at 
 large had long been apprized of the relations of the parties. 
 Under this settled subsisting engagement, the future husband 
 had, in the ordinary course of things, for this long period of 
 time, the same influence over the mind and the aets of the wife 
 which grows up in the actual marriage connection. And before 
 the ante-nuptial contract was proposed, the actual verbal agree- 
 ment to marry had been made between the parties, and her 
 friends were advised of the fact.” 
 
 It would be difficult to find in print, in the same number of 
 lines, as many eriors as are contained in this extract—every 
 sentence of which is erroneous. 
 
46 
 
 1. The breach of promise case is a sheer assumption. The 
 plaintiff herself don’t pretend that there were more than two en- 
 gagements. (See her petition.) The first of these was mutu-* 
 ally dissolved, so that gave no cause of action; and the other 
 was executed. 
 
 2. She was entitled to the marriage, just as every woman who 
 becomes engaged is entitled to it; and as to the knowledge of the 
 public, why her own aunt did not suspect there would be a mar- 
 riage until Mr. Ross told her of the engagement. 
 
 3. There is no proof that he had any more influence over her 
 than she had over him, or that either had more influence over the 
 other than usually exists where parties are engaged. 
 
 4. The engagement was not known before the contract was 
 proposed. 
 
 The counsel next assume, without proof, that the contract was 
 dictated by Mr. Ross-—that it was not an agreement of parties, 
 but a mere expression of his will; and, to support this theory, 
 they state, that Mrs. McLandburgh said to Mr. Ross, “ ‘It is all 
 your own work, William Ross; Jane had nothing to do with it,’ 
 which he admitted to be so.” 
 
 ere are more mistakes. Mrs. McLandburgh did testify that 
 she said to Ross, “This is your work,” but she did not, unless 
 both our memories and our notes are faulty, add the expression, 
 “ Jane had nothing to do with it; ” and she certainly did not tes- 
 tify that Ross admitted any such thing. On the contrary, she 
 testified expressly, that Ross said that he and Jane had agreed 
 about the property, and not one word did she utter that indicated 
 that the terms were not settled by agreement. The whole scope 
 of her remark, “ this is your work,” fairly understood, is, that the 
 proposition for a contract came from Ross, not that he dictated 
 its terms. This is probable enough, though the testimony of the 
 witness is proof of nothing but her own surmise. Indeed, the 
 counsel themselves, at the bottom of the same page of their argu- 
 ment, say, ‘that the terms of the contract were fixed between 
 him and his intended wife.” 
 
 Unless 1 am greatly mistaken, counsel fall into another error 
 about Mrs. McLandburgh’s testimony. They say that “she said to 
 
 ior Slee ail 
 
47 
 
 _jtoss that the contract was hard and unequal.” She certainly 
 did point out what she supposed to be an inequality, but I have 
 no recollection that she used the word “ hard,’ nor do I find it in 
 our notes. I feel very confident that she did not use it. 
 
 Counsel argue, ‘“‘ That she had no means of knowing, and did 
 not know, the value of his estate, and the reasonableness of the 
 provision, is proved by evidence of the extreme closeness with 
 which he kept his affairs,” and by the errors of the assessors. 
 
 Reply. It cannot be assumed that she was ignorant of his 
 realty, for he settled nearly all of it upon her. And as to his 
 personalty, it matters not how much he had, because, for reasons 
 before stated, that affords no test of the reasonableness of the con- 
 tract. But what are the facts? It was proved by the testimony 
 of numerous witnesses, and disproved by none, that he was uni- 
 versally reputed to be the wealthiest man in Ross county save 
 one; and as he had, comparatively speaking, but little real estate, 
 it was of course understood that the bulk of his wealth was per- 
 sonalty. Now, it cannot be presumed, that this reputation, thus 
 known to every body, was unknown to the plaintiff, or that there 
 was any reason why she should deem it to be false. On the con- 
 trary, the long intimacy of herself and relatives, male and female, 
 with Mr. Ross, gave her better opportunities to know the extent 
 of his fortune than were enjoyed by the public. It is said that 
 he was secretive concerning his wealth, but the testimony does 
 not bear out the assertion ; for it is clearly proved by his clerks, 
 that his books, showing what he was worth, lay upon the desks 
 of his store, open to their examination, and it nowhere appears 
 that he ever laid an injunction of secresy upon any of them. Nay, 
 more: after he ceased merchandizing, and was succeeded by the 
 firm of Wilson, Miller & Woodrow, the books remained with 
 them, accessible not only to them, but also to their clerks, if they 
 had any. (See the depositions, and especially Mr. Woodrow’s. ) 
 Here is no evidence of secretiveness, but just the reverse ; and in 
 view of this testimony, whose tendency is not in any way rebutted, 
 I feel warranted in saying, that while Mr. Ross was too sensible 
 aman to boast of his wealth, on the other hand, he made no 
 effort to conceal it. At all events, he did not conceal it from his 
 
48 
 
 clerks, or tell them to conceal it; and for many years these clerks 
 boarded with the plaintiff, and one of them was her own brother. 
 Under these circumstances, to suppose that she was under any 
 delusion as to his fortune, is, without disrespect be it spoken, 
 simply absurd. 
 
 As to the blunders of the assessors, it is not pretended that she 
 knew what was in the tax lists; and had she known, there is no 
 reason to suppose that she would have been deceived by them. 
 Will any one pretend that she thought Mr. Ross had but $36,- 
 000 of personalty at the time of the marriage? J am sure that 
 she will not pretend so; for had that been her belief, she would 
 have so stated in her Reply ; and besides, she was by far too sen- 
 sible a woman to think that a man of no more means than that 
 could enjoy the reputation of being the wealthiest man, save one, 
 in the county. The truth is, these tax lists are of no value what- 
 ever as testimony, even were they admissible, which they are not ; 
 and it will"be remembered that they were read subject to excep- 
 tion. By such testimony, if the effect contended for were given 
 to it, it wouid be easy to prove that every man, who does not give 
 in a sworn list, is of the secretive character attributed to Mr. 
 Ross; for the under estimates of assessors are not the exception, 
 but the general rule. 
 
 Ex parte Marsh, 1 Atk. 158, was a case in which the specific 
 execution of a marriage contract was resisted on the ground that 
 the man had been deceived in respect to the extent of the woman’s 
 fortune. It wasthe same in principle as this case ; the parties being 
 reversed obviously making no difference. But Lord Hardwicke de- 
 creed a specific execution. He said: ‘This (the contract) is in 
 consideration of the marriage, and of the fortune she brought; and, 
 unless some fraud appears, it must have its effect.” And, again: 
 “ A man thinks fit to marry a single woman or a widow, and im- 
 agines she has such a fortune, and perhaps on a strict account, or 
 by some defective debts, it should fall short, it would be very mis- 
 chievous to set aside marriage agreements for this reason.” That 
 is, his Lordship repelled the idea of invalidating such contracts 
 by showing a wrong estimate of a party’s property, unless there 
 was fraud. 
 
49 
 
 Finally, on this branch of the case, it is said: ‘Besides, it was 
 a most unpropitious circumstance, that the terms of the contract 
 were fixed between him and his intended wife, after he had secret- 
 ly consulted counsel on his part, without friend, or counsel, or ad- 
 viser, as he well knew, on hers. The books condemn a transac- 
 tion so entered into on the face of it, unless the contract be such 
 that prudent counsel would have advised her to enter into it.” 
 
 I might content myself with saying that this case comes within 
 the very exception above stated; for the contract is one that pru- 
 dent counsel, if he had thought it proper to advise her what to 
 do, would have told her to enter into. I don’t suppose that pro- 
 fessional prudence would exact of counsel, on such an occasion, to 
 advise his client to chaffer for a bargain, or to treat the transaction 
 as a property trade about a horse. It may do now for the learned 
 counsel to say, that “it is a pure money or property contract ;” 
 but, with all proper deference, I cannot avoid a doubt whether 
 that would have been their opinion had they been called iu to ad- 
 vise when the contract was made. Had Mr. Thurman been called 
 in, as counsel are pleased to imagine, I will not undertake to 
 affirm what he would have said. It is very probable that he 
 would have reasoned something after this wise: ‘ With the 
 terms of this contract, except to see that they are legal, I have 
 nothing to do. The parties know their own business better than 
 I can know it; and they have the legaf and actual capacity to 
 make their own bargains. It is not the province of counsel or 
 courts to make contracts for people, and marriage contracts are 
 not exceptions to this rule. I see here no attempt at imposition, 
 and the agreement is not unreasonable, either in fact or according 
 to authority. There is nothing, therefore, for me to say to the 
 parties, nothing that in the character of a lawyer it would be 
 proper for me to say, except that I consider this a valid and effec- 
 tual instrument.” 
 
 But had Mr. Thurman felt authorized, as a friend, to go be- 
 yond tke sphere of his professional duties, it is not very probable 
 that a marriage to a highly respected, intelligent, educated and 
 amiable man; an exemption from all expense while the coverture 
 should last; the absolufe ownership of her own estate, and a cer- 
 
 7 
 
50 | ; 
 
 tain and ample support for life out of his estate when he should 
 be no more, would have seemed so very bad a bargain for a lady 
 of forty-nine, as to warrant him in counseling her to insist upon more. 
 
 I think your Honor will have no difficulty in arriving at the 
 same conclusion, especially when aided by the results of the 
 marriage, as shown by the preceding tables. If so, there is an 
 end of the objection; for, as counsel correctly admit, it is only 
 when courts are called upon to execute unreasonable contracts, 
 that they inquire whether they were providently or improvidently 
 mude. 
 
 The law is thus stated in the American note to Huguenin v. 
 Baseley, 2 Leading Cases in Equity, Pt. 2. 65: 
 
 “Frand and mistake vitiate and avoid a conveyance, without 
 regard to the source whence they originate, or the effect which 
 they produce. But in order to avoid a grant on the ground of 
 undue influence, it must be shown that the influence existed, and 
 was exercised for an undue avd disadvantageous purpose. The 
 former point may be inferred from the relative or actual position 
 of the parties ; but the latter must be determined by an examina- 
 tion into the nature and results of the transaction which is called 
 in question. Both these points must concur to produce the 
 effect of avoidance. The disadvantageous or improvident na- 
 ture of a grant will not entitle the grantor to set it aside, when it 
 is the result of his own folly or indiscretion, and not of external 
 or improper influence. Hadley v. Lapmer, 3 Yerger, 537. Nor 
 can he avoid it as having been procured by influence, when tt 
 is just in itself, and in its consequences. McDonald.v. Neil- 
 son, 2 Cowen, 139.” — 
 
 So, in the English note to the same case (page 57): “ But 
 if the transaction is reasonable, and entered into with good faith, 
 equity will not interfere ”—citing authorities. 
 
 And by Lord Hardwicke, in Slapilton v. Stapilton (same vol. 
 253): ‘“ Another objection has been taken, that the father made 
 use of his coercive power over Philip, to force him into this agree- 
 ment; and, it is said, equity does not favor agreements made by 
 compulsion. But this Court always considers the reasonable- 
 ness of the agreement.” M 
 
 ee 
 
ol 
 
 Before proceeding to notice the authorities cited by counsel on 
 this head, I must call attention to some further errors of fact into 
 which they have fallen. 
 
 They assert that the terms of the contract were fixed after Mr. 
 Thurman was consulted. I have shown, I think, that they were 
 fixed at the time of the engagement; but whether that is so or 
 not, it is positively certain that they were agreed on before Mr. 
 Ross had heard a word from Mr. Thurman, and that the legal 
 advice sought, was merely whether such a contract was permitted 
 in Ohio. Mr. Thurman’s opinion was not delivered until July 
 15th; but before this, Mr. Ross had told Mr. Dun what property 
 the plaintiff was to have; and as early as the 12th or 13th, had 
 stated the terms of the agreement in detail to Mrs. McLand- 
 burgh. 
 
 Again: It is assumed that Mr. Ross “secretly consulted coun- 
 sel on his part.” Suppose this were so: of what significance is it, 
 when the inquiry was merely whether the laws of Ohio allowed 
 the contract; when the correctness of the advice given is not, in 
 any degree, impeached ; when it did not, and could not, have mis- 
 led the plaintiff; and when the knowledge it imparted did not, and 
 could not, give Mr. Ross any advantage over her? But there is no 
 proof of the alleged secrecy of consultation. An A. and B. 
 case, it is true, was put to Mr. Thurman, (pretty strong proof, I 
 repeat, that the engagement of the parties had not become pub- 
 lic, as is pretended ;) but there is nothing to show that this was 
 done by Mr. Ross without the knowledge of the plaintiff, or that 
 the advice was sought on his part more than on hers. 
 
 Yet, again: It is said that she was “without friend, or coun- 
 sel, or adviser, as he well knew.” 
 
 Now, he knew no such thing; for such was not the fact. She 
 had plenty of relatives and friends, if she chose to consult them ; 
 and there were plenty of counsel in Chillicothe, if she wanted 
 their advice. How many persons she consulted before the con- 
 tract was executed, your Honor don’t know. It may be, that 
 satisfied with its provisions, as well she might be, and having a 
 just confidence in her own judgment, she consulted no one; but 
 if that be so, it was* her own choice thus to act. There is no 
 
52 
 
 ~ pretense that Mr. Ross enjoined silence upon her; for the very 
 first thing he did himself, was to communicate the agreement to 
 her aunt. 
 
 Counsel say : 
 
 “Lord C. J. Wilmot says, that the attorney who makes the 
 papers, should go and talk with the grantor and grantee about 
 it. That is, that both should have the benefit of legal counsel. 
 1 Wilm. 69; 14 Ves 297.” 
 
 I am sure that my learned friends did not look at the case 
 (Bridgeman v. Green) decided by Wilmot and his associates ; 
 for if they had, they would not have referred for his remark to 14 
 Ves. 297, (Huguenin v. Baseley,) nor made a statement which 
 seems to imply that he was laying down a general rule, or one 
 that is applicable to a case like the present. Bridgeman v. Green, 
 was first decided by Lord Hardwicke, 2 Ves., Sen., 626, and his 
 decree affirmed on a rehearing by the Lords Commissioners. 
 (Wilmot 58, ct seq.) It was not a case of marriage contract, or 
 of an instrument supported by a consideration; but of a grant 
 obtained by fraud and without consideration. Green was the ser- 
 vant and Lock the lawyer of Bridgeman, who was a weak man, (in 
 the language of Lord Hardwicke, “a very imprudent man, but 
 not so weak as to be called a fool,”) and over whom Green “had 
 got great influence.”? To defraud this improvident man, Green 
 and Lock formed a combination, the first step in which was to 
 create ‘dissension between him and his wife,” and get him to live 
 separate from her, and thus deprive him of her watchfulness. 
 This, Green’s influence was sufficient to accomplish; and having 
 accomplished it, the plaintiff was induced to convey an estate to 
 Green, without consideration, on pretense of qualifying him to 
 kill game. This was the second step. The third was for Green 
 to deliver up that estate, and in consideration thereof, to get from 
 the plaintiff a conveyance of another estate; which was done. 
 Finally, he was made to mortgage his whole estate to raise 
 £5,000—3,000 thereof to be paid to Green and his (Green’s) 
 wife, 1,000 to Green’s brother, and the remaining 1,000 to Loek in 
 trust for his (Lock’s) son—all without any consideration whatever ; 
 
53 
 
 in addition to which, Lock got from him two promissory notes, for 
 £105 and £123—the one for procuring the money, the other for 
 his bill of costs. 
 
 The bill was filed against Green, Lock, et al., to compel them 
 to account for the £5,000. Their defense was, that the plaintiff 
 gave them the money. But the case was so outrageous, (a com- 
 bination by a man's own lawyer and his confidential servant, to 
 take advantage of his weakness and defraud him out of his 
 estate, and by such diabolical means, among others, as that of 
 setting him at variance with his wife, and separating him from 
 her,) that the very first sentence uttered by Lord Hardwicke 
 was as follows: ‘Next to the surprise and concern one has to 
 see persons enter into such a combination as this, is the surprise 
 to see it contended in a court of justice.” And, in view of the 
 evidence, he said that it was ‘‘the plainest case of imposition,” 
 and that ‘he never saw a more barefaced and shameful transac- 
 tion.” As to Lock, the attorney, he expressly found him to be 
 particeps fraudis; and that the £1,009 pretended to be for his 
 son, were in fact for himself; and he decreed in solido against all 
 the defendants, saying: I “must charge them all with the whole, 
 all being combined together.” 
 
 Now, it was in reference to this man—engaged in a conspiracy 
 against his client, and plundering him by means of a mortgage 
 that he did not understand—a defendant in the suit, and against 
 whom a decree had been rendered, that C. J. Wilmot said that 
 he ought to have talked to the grantor. Certainly he ought; and 
 more, too. He ought to have refrained himself from an attempt 
 to cheat his client, and not to have knowingly suffered another to 
 cheat him. This is all that can be drawn from the remark of the 
 Chief Justice, and it in no manner supports the inference which the 
 plaintiffs counsel seek to draw from it. Lord Hardwicke made 
 no such remark, for the fraud was plain enough without dwelling 
 on that circumstance. 
 
 On the trial of Judge Peck, (page 299,) Judge Spencer, in 
 speaking of a case decided by Wilmot, rather contemptuously 
 remarked: ‘If I mistake not, this is the same Judge Wilmot 
 who maintained that the consideration of a promissory note, be- 
 tween the original parties, was not inquirable into; and he pro- 
 
b4 
 
 bably led Blackstone into one of the greatest errors, in maintain- 
 ing that assertion, in his whole commentaries.” J am under no 
 necessity, and have no desire to utter a like sarcasm; but I should 
 think it well deserved, had the Chief Justice gone so wild as to 
 hold that a marriage contract is impaired by the absence of legal 
 advice. For the books are full of cases sustaining such contracts, 
 where there was no such advice; and not a case can be found that 
 makes it essential to their validity. But I need go no farther 
 than the case of Stilley v. Folger, the circumstances of which, 
 in this particular, I have hereinbefore shown. 
 
 I may remark, in passing, that the book from which Wilmot’s 
 remark is cited—‘ Notes of Opinions and Judgments Delivered in 
 Different Courts, by Sir John Eardley Wilmot”—was published 
 in 1802, many years after his death, and has never, I believe, 
 reached a second edition ; the reason of which may be found in 
 the following remarks respecting it, in Marvin’s Legal Bibliog- 
 raphy: “These were certainly not intended by the learned 
 Judge for publication, and some of them are not perfect. There 
 is no doubt but they would have been all equally valuable, if they 
 had all received his last correction; and still more, if his modesty 
 had permitted him to revise them with a view to publication.” 
 
 Wilmot’s remark is referred to by Lord Eldon, in Huguenin 
 v. Baseley, not as a fatal objection per se — for no case intimates 
 that idea — but as a circumstance which, with the other special 
 circumstances, tended to prove that the grantor, Mrs. Hill, after- 
 wards Huguenin, did not understand the instruments. It is true, 
 that the conduct of the solicitor in that case is censured, and very 
 justly; for he was the solicitor of the grantor, and, therefore, 
 bound to take care of her interests, especially as she was a weak 
 minded and superstitious woman, and the instruments were very 
 complex, and such as few persons, not lawyers, would comprehend 
 without explanation. Instead, however, of protecting her, he not 
 only permited her to give away her estate to Baseley, her spirit- 
 ual adviser and also her agent, but he also took “to himself an 
 advantage with respect to the property.” By the arts of Base- 
 ley, whom she regarded as a friend provided for her by a special 
 interposition of Providence, she was induced to withdraw her bus- 
 
ry 
 
 9 
 or 
 
 iness from the solicitors who had it in charge, and confide it 
 wholly to him; and he accordingly took charge of it, and placed 
 it to a certain extent in the hands of his own solicitor, who there- 
 by became hers also. Having thus assumed the management of 
 her affairs as her agents, the law of course imposed upon them 
 the duty of protecting her interests; and having failed to do so— 
 nay, worse, having defrauded her themselves — they were most 
 righteously condemned by the Chancellor. She had advice, but 
 it was fraudulent advice. Baseley, the parson and agent, advised 
 her, but for his own benefit; the solicitor advised her, but so as 
 not to interfere with Baseley’s purpose; and her only relatives, 
 who could have protected her, were silenced by a suggestion, 
 “that ample provision was to be made for their children.” And 
 so the poor woman, surrounded on all sides by deception, domi- 
 nated by her priest, betrayed by her agents, and wilfully unpro- 
 tected by her relatives, gave away her property by instruments 
 which the Court expressly finds she did not understand — gave 
 it away when she had mother and brother, and nephews and 
 nieces — nay, more, was on the eve of a marriage that might give 
 children to herself. 
 
 Well might the Chancellor say, that her agents had not placed 
 around her that ‘‘ care and providence ” “which, from their situa- 
 tion in relation to her, they were bound to exert on her behalf ; ” 
 and well might he exclaim, in view of her weakness and the 
 means by which she was influenced, that the question was, “ not 
 whether she knew what she was doing, had done, or proposed to 
 do, but how the intention was produced;” but that my learned 
 friends should apply these remarks— special to a ease of the 
 grossest fraud—to a case like the present, is just ground for 
 astonishment. Let them show that Jane Welsh was a supersti- 
 tious and weak minded woman; that William Ross exerted over 
 her an influence akin to.spiritual domination; that she had sur- 
 rendered to him the whole management of her affairs ; that he 
 selected her lawyer to betray her, and that she was so betrayed ; 
 that her relatives were silent because they thought it their inter- 
 est to be so; that the instrument she executed she did not under- 
 stand ; that she gave away her own property to her fraudulent 
 
56 
 
 agent; that she cut off from her bounty the very mother that bore 
 her, and her own possible offspring —let them do this, and they 
 may cite Huguenin v. Basely as authority, and apply the lan- 
 guage of Lord Eldon in all its force. But to do so, in a case 
 where there is no undue influence, no misrepresentation, no cor- 
 rupt silence, no scheming arts, no agency, no gift of property, 
 no ignorance of the terms or effect of instruments —a case of con- 
 tract, contract between persons fully capable, contract upon am- 
 ple consideration, contract that has given a fortune to the woman, 
 contract so plain that a child might understand it—to do so in 
 such a case, is to pervert, instead of applying, authority. 
 
 Counsel refer to the argument of Sir Samuel Romilly, and 
 quote his saying, that ‘relief stands upon general principles, ap- 
 plying to all the variety of relations in which dominion may be 
 exercised by one person over another;” but by lookiag at the 
 context, your Honor will observe that the remark relates to gifts, 
 and not to contracts upon sufficient consideration. It had been 
 argued for Baseley, that, if the relation of principal and agent 
 disqualifies the latter to accept a bounty from the former, the rule 
 applies only where the agency is for reward. Sir Samuel denied 
 this limitation, and asserted the general principle above quoted — 
 a principle that has been approved thus far, that if undue influ- 
 ence be proved, and it be shown that it was exercised to procure 
 the gift or grant, it matters not by whom it was possessed and 
 exercised: But, except in the cases of attorney, guardian, or 
 trustee, such influence is not presumed from the mere relation of 
 the parties: it must be proved. (Hunter v. Atkins, 3 My. & K. 
 135.) Hence, in Huguenin v. Baseley, Lord Eldon would not 
 set aside the gift on the mere ground that the donee was the 
 spiritual adviser of the donor. After stating that relationship, 
 and also his agency for her, and the character of the instruments, 
 he says: “ To the question, whether, these instruments being such 
 as I have represented them, the consequence is, that this Court 
 shall undo them, I answer, No: if they are the pure, voluntary, 
 well-understood acts of her mind.” 
 
 But it is unnecessary to go beyond our own reports. ‘There is 
 
 a 
 
ve 
 
 a7 
 
 certainly no relation that creates a stronger influence than that of 
 husband and wife; and, indeed, the plaintiff’s counsel liken this 
 case to that, and build their arguments upon the assumption. But 
 in Lewis v. Baldwin, 11 O. R. 352, andin Hardy v. Van Harlin- 
 gen, 70. 8. R. 208, gifts of almost their whole estates, by wives 
 to their husbands, were sustained ; and in the former case implied- 
 ly, and in the latter expressly, the court held, that ‘undue influ- 
 ence will not be presumed from the mere relation of the parties ; 
 it must be shown, either by direct proof, or by circumstances from 
 which it may be fairly inferred.” And that circumstances infi- 
 nitely stronger than those under consideration, will not justify 
 such an inference, is very plainly shown by each of these cases. 
 In the first case, the wife was young, sick, shortly to die, and, as 
 the bill charged, of debilitated mind; a charge that was probably 
 true, for the court did not negative it, but merely found that ‘she 
 was of sufficient mental capacity to make a contract.” The 
 donee was not merely her husband, but also her pastor; and “she 
 reposed (said the court) entire confidence in him as her husband, 
 friend and spiritual guide. She had brothers and sisters, and the 
 estate came.to her, I presume, from a common ancestor. Her 
 husband could have no claim upon it after her death, for there was 
 no issue of the marriage, and so the transaction was an unquali- 
 fied gift. Yet the court saw no undue influence in these circum- 
 stances, and sustained the deed. 
 
 Hardy v. Van Harlingen, is, in some respects, a similar, and, 
 in others, a still stronger case for us. There, the transaction was 
 a gift, the donor a wife, the donee her husband, her age less than 
 nineteen years, her health irrecoverably bad, her end approaching, 
 her residence among strangers, the property derived from the 
 common ancestor of her and her brothers and sisters, the brothers 
 and sisters living, and some direct proof, not very credible it is 
 true, of importunity by the husband; and yet the court fotind no 
 undue influence. 
 
 And in neither of these cases had the husband made any provi- 
 sion for the wife. 
 
 Now, if under such circumstances, a gift of her whole estate, 
 by a young and feeble and dying wife, to her husband, from 
 
 8 
 
a8 
 
 whom she had never received or been promised anything pecunia- 
 ry, is sustainable, and undue influence will not be presumed, with 
 what face, I ask, is it to be presumed when there was no existing 
 marriage, but only an engagement; no gift, but on the contrary, a 
 large pecuniary consideration in addition to that of marriage; no 
 youth, but far advanced age; no mortal sickness, but health suffi- 
 cient to justify marriage; no feebleness of mind, but strong and 
 vigorous intellect; no domicil among strangers, but relatives and 
 friends all around to consult? The learned counsel exclaim, 
 “What care and providence ought to have been placed round 
 Jane Welsh by her intended husb&nd, her sole adviser, if not dic- 
 tator ! Surely he should have seen that she had the benefit of 
 counsel learned in the law, as well as himself.” In reply, I ask, 
 what care and providence were placed around Mrs. Baldwin and 
 Mrs. Van Harlingen by their actual husbands? What counsel 
 learned in the law did they call in, when about to receive from 
 their wives donations of their whole estates? What relatives 
 even were consulted, or in reach of consultation ? 
 
 Whelan v. Whelan, 3 Cow. 537, cited by counsel, was a case 
 of conveyances of all his estate, for a trifling consideration, 
 made by a weak and credulous father of 74 years, to two of his 
 sons, who were the managers of his business, to the disinherison 
 of his five other children. There was direct proof of fraud, im- 
 position and undue influence; and so the conveyances were set 
 aside by a majority of the Court of Errors. The decision may 
 have been correct, though its force is somewhat lessened by the 
 fact that Chancellor Kent dismissed the bill; and seven of the 
 Senators, among whom were Bronson and Wright, were for affirm- 
 ing his decree. However, the case has no analogy to the present 
 case. 
 
 Counsel say: ‘The case of Campbell v. Spencer, 2 Binney, 
 138, marks the distinction which courts of equity take in setting 
 up and setting aside a contract.” 
 
 “C.J. Tilghman says: ‘Though there is no express evidence of 
 unfair advautage, or that the price was very inadequate, yet there 
 are circumstances in the transaction which I do not like.’ And 
 he therefore refuses to grant a new trial, which was equivalent to 
 
BYy) 
 
 refusing a decree for specific performance, had he been Chancel- 
 lor.” 
 
 This inference is an error, as is shown by both the case and 
 the express language of the Chief Justice. A new trial had 
 been granted by Judge Yeates, for which he was reversed by his 
 brethren, Tilghman and Brackenridge. After saying, that, had 
 the case been brought before him, as a chancellor, for specific 
 performance, he should ‘have felt considerable difficulty in form- 
 ing a decision,” and that there were circumstances in the trans- 
 action which he did not like, referring to them, he adds: “J will 
 not say, nor have I made up my mind, how a chancellor 
 ought to decree, under all these circumstances. But that ws 
 not precisely the point before us. The jury found for the 
 defendant, which strengthens his case very much. Iam now 
 to consider whether that verdict is so clearly wrong, that a new 
 trial: should be granted.” And, afterwards, in conclusion: 
 “The result of my reflections is an opinion that the verdict 
 should stand; and I am the more inclined to this, as the 
 plaintiff is not concluded by this judgment, but may try the 
 matter once more in a new ejectment.” 
 
 The other authorities cited under this head by the learned 
 counsel, being merely to sustain their proposition that, ‘when 
 influence is shown to have existed, and to have been unduly ex- 
 erted, the source whence it originated is immaterial ;” it is unne- 
 cessary to notice them. 
 
 Before passing to another topic, I will remark, that it is now 
 well settled, both in England and the United States, that a spe- 
 cific performance of even ordinary contracts will not be refused 
 for mere inadequacy of consideration. In the case of Calla- 
 ghan v. Callaghan, decided by the House of Lords, in 1841, 
 (8 Clark aud Fin. 374,) the rule is thus laid down: “ Inade- 
 quacy of value is not an objection to decreeing specific perform- 
 ance, unless the inadequacy is so great as to prove fraud, or that 
 the parties could not have intended to execute the contract.” 
 
 This was no new doctrine.- It was yet more emphatically as- 
 serted in Coles v. Trecothick, 9 Vcs., Jr., 245, in which Lord 
 
0) 
 
 Kldon said: ‘Unless the inadequacy of price is such as shocks 
 the conscience, and amounts in itself to conclusive and decisive 
 evidence of fraud in the transaction, it is not itself a sufficient 
 ground for refusing a specific performance.” 
 
 For a reference to many other cases, both English and Ameri- 
 can, see Harris v. Tyson, 24, Pen. St., Rep. 359. 
 
 Courts have said that they would not decree the specific per- 
 formance of contracts, which, nevertheless, they would not an- 
 nul; but would leave the party to recover his damages at law. 
 But the ground of this distinction fails, and with it the distinction 
 itself, where, in the very nature of the transaction, there can beno 
 remedy at law. In the present case, for instance—assuming the 
 contract to be executory, which I by no means admit—it is plain 
 that no action at law will lie against the plaintiff. To say, there- 
 fore, that the contract shall neither be performed or annulled, 
 would be simply absurd; for to refuse its execution would be in 
 effect to annul it. It follows, that the doctrine in relation’ to 
 annulling contracts, applies to this case; and what that is, we 
 all know. It is very plainly stated in 1 Story’s Eq., Sec. 245, 
 as follows: ‘‘Inadequacy of consideration is not, then, of itself, 
 a distinet principle of relief in equity. The common law knows 
 no such principle. The consideration, be it more or less, supports 
 the contract. |. Common sense knows no such principle. * * * 
 If courts of equity were to unravel all these transactions, they 
 would throw everything into confusion, and set afloat the con- 
 tracts of mankind. Sucha consequence would of itself be suffi- 
 cient to show the inconvenience and impracticability, if not the 
 injustice, of adopting the doctrine, that mere inadequacy of con- 
 sideration, should form a distinct ground for relief.” 
 
 These remarks were quoted and approved by the Supreme 
 Court of the United States, in Lyre v. Potter, 15 How. 60, and 
 the Court held, that “it will not do to set up mere inadequacy of 
 price as a cause for annulling a contract, made by persons com- 
 petent and willing to contract.” 
 
 But this case in Howard deserves further attention ; for, though 
 it was not about a marriage contract, it was, in some respects, 
 analogous to the present case. I have already shown, that undue 
 
61 
 
 influence and affection are different things, and that the latter 
 upholds, instead of destroying, contracts. AndI have also shown 
 that marriage was a part of the consideration here, and that, by 
 the contract, ease, independence, and exemption from care and 
 business were secured to the plaintiff; and I have argued that the 
 extent of Mr. Ross’ fortune does not furnish the test of the rea- 
 sonableness of the contract. And now, bearing these things in 
 mind, I invite your Honor’s attention to the following language 
 of the court, in the case just cited: ‘ But the contract between 
 the parties in this case should not be controlled by a comparison 
 between the subject obtained and the consideration given, in a 
 mere pecuniary point of view; added to this, were the motives of 
 affection for the wife of the grantee, the grand-daughter of the 
 grantor; a conviction in the latter of what justice dictated to- 
 - wards the children of the decedent in relation to his property ; 
 the prospect of ease and independence on the part of this elderly 
 ferhale; her exemption from the expense, the perplexities and 
 hazards of managing a species of property, to the management 
 of which, expense and energy and skill were indispensable ;_ prop- 
 erty, to the tenure of which she entertained and expressed insup- 
 arable objections. Here, theu, in addition to the sums of money 
 paid, or secured to be paid, we see considerations of great influ- 
 ence, which, naturally, justly, and lawfully, might have entered 
 into this contract, and which we think cannot be desregarded in 
 its interpretation, upon any suvund construction of the testimony in 
 the cause.” 
 
 In Kirby v. Harrison, 2 O. S. R., 333, the Court said: “In 
 general, where a specific execution would “be refused, a rescission 
 will be decreed”—thus placing performance and rescission on the 
 same footing in general. 
 
 In view of these reasons and authorities, I submit, that were 
 this a mere “‘ money or property contract,” as the plaintiff ’s coun- 
 sel call it, it would still be enforced; but when we see that it is a 
 marriage contract, and that the marriage took place, what pos- 
 sible doubt can there be about its enforcement? For, of all 
 contracts known to the law, marriage contracts, followed by mar- 
 riage, are those most readily enforced by courts; and so much is 
 
62 
 
 their specific execution favored, that even a failure of performance, 
 by one party, of money or property covenants, does not release 
 the other party from performance. (See authorities hereinafter 
 cited.) The rule in regard to enforcing these contracts was 
 clearly stated by Lord Eldon, in Prebble v. Boghurst, 1 Swans- 
 ton, 329, in which the specific performance of the contract was 
 decreed, though thereby the children of a second marriage were 
 wholly cut off. His Lordship said: “The case has been rep- 
 resented hy the defendants as a case of hardship; the issue of 
 the first marriage claiming all the lands of which the obligor be- 
 came seized during the second coverture, as subject to the 
 obligation, or, to give it another name, the agreement; but, un- 
 less hardship arises to a degree of inconvenience and absurdity 
 so great that the Court can judicially say, ‘ Such could not be the 
 meaning of the parties,’ it cannot influence the decision.” 
 
 Are the inconvenience and absurdity of the contract of Wil- 
 liam Ross and Jane Welsh so great, that your Honor can judi- 
 cially say, ‘‘ Such could not be the meaning of the parties?” If 
 not, the alleged hardship, even were it real’instead of being ficti- 
 tious, cannot influence your decision. 
 
 Counsel intimate that Mr. Ross’ relinquishment of ‘life rent,” 
 in the event of his survivorship, was a suggestio falsi, because, 
 as the law then stood, issue was necessary to give curtesy. But 
 the parties intended, that whatever changes the law might undergo, 
 the contract should fix their rights; and it was, therefore, very 
 proper for him to so covenant, that, in any state of the law, he 
 could have no surviving interest in her realty; and the wisdom 
 of that course is shown by the fact, that in a few years after the 
 marriage, the law was so changed as to give curtesy without 
 issue being born. Swan’s St., 323, Sec. 17. 
 
 But where is the averment in pleading, that she was misled by 
 any such suggestion, or that any false suggestion was made to 
 her, or that he knew, and she did not know the law in this par- 
 ticular? There isnot a word of the sort in the pleadings, but 
 just the reverse ; and therefore it is, that counsel ask your Honor 
 to disregard the pleadings, and decide this case upon an assumed 
 state of facts that their client will not swear to. 
 
65 
 
 III. Of the construction of thecontract. The plaintiff ’s counsel, 
 in their printed argument, have started a point not made before. 
 They say that the contract can only bar the plaintiff of one-third of 
 the personalty ; that being the portion given to a widow by the 
 law in force when the contract was made. They admit that the 
 language is broad enough to bar her of all; but they argue that 
 it must be restricted to one-third, for the reason above given. 
 They say that the parties contracted with reference to the then 
 existing law, intending nothing more ; and this intention limits the 
 terms used. In reply, I say, that the parties contracted with 
 reference to the law that might be in force at Mr. Ross’ death, in 
 the place where he might then be domiciled ; and that any other 
 construction of their language is not merely unreasonable, but is 
 impossible. And I further say, that it is not admissible to alter 
 or vary this language by matter dehors; but were it admissible, 
 there is no matter here that alters its natural import. 
 
 And now what was the intent of the parties? To ascertain 
 this, we have only to let them speak for themselves, for they have 
 not left it to inference. They have declared it in the preamble to 
 their covenants, in this unmistakable language: “ An agreement 
 between Jane Welsh and William Ross is as follows: Those 
 two individuals intending to become husband and wife, and being 
 the owners of property both real and personal, and wishing each 
 to retain and control, in the event of becoming husband and 
 wife, the use and disposition of their respective properties, in 
 the event of the death of either, have agreed, whilst they are 
 equally independent, and free from any undue influence or control 
 of the one over the other, as follows. ” 
 
 Here is an express declaration of their purpose—each party is 
 to retain and control the use and disposition of his or her 
 property, in the event of his or her death—that is, Mrs. Ross may 
 devise and bequeath the whole of hers as she shall see fit; and 
 Mr. Ross, in like manner, may devise and bequeath all his, ex- 
 cept the life estate in lots 9 and 23, settled upon his wife. 
 
 And in perfect harmony with the declared intention, are her 
 covenants, to wit : , 
 
 “Jean Welsh, on her part, agrees, and hereby binds herself, to 
 
64 
 
 waive, renounce and relinquish all claim and right of dower in 
 and to the real estate of the said William Ross, to which, by law, 
 she would have right, and to which she would be entitled, at the 
 death of William Ross ; and she further agrees, and hereby binds 
 herself to waive, renounce and relinquish all the share or portion 
 of the personal estate of the said William, to which, by law, she 
 would have right, and to which she would be entitled, in the 
 event of his death.” 
 
 Now, what does she here covenant to release ? That “to which, 
 by law, she would have right, and to which she would be enti- 
 tled, at the death of William Ross,” or “in the event of his 
 death”—the expressions are synonymous. “By law!” What 
 law? Plainly, necessarily, the law in force at his death; for by 
 no other law could she have any rights. To say, as contended 
 for by counsel, that the law of 1846 was meant, would be to ren- 
 der her covenant wholly nugatory. For what she covenants to 
 release are not rights that, in the nature of things, could have no 
 existence, but rights that, but for the contract, would, by law, be 
 hers. But the law of 1846, having been repealed before Mr. 
 Ross’ death, there could be no rights wnder zt; and hence, if she 
 only covenanted to release such rights as that law might confer, 
 her covenant has become wholly inoperative by its repeal. The 
 argument of the learned counsel, therefore, proves too much ; for, 
 instead of construing, it overturns the contract’; and not this con- 
 tract alone, but nearly every marriage contract that has been made 
 in a State whose laws of descent and distribution have been so 
 frequently changed. 
 
 Counsel say, that the parties ‘‘cannot be presumed to have had 
 the change of law in their contemplation, or to have provided 
 against it.” I don’t care whether they contemplated such a 
 change or not; one thing they did contemplate, for they tell us so 
 in this very contract —to wit: that Mr. Ross should control the 
 disposition of his estate, in the event of his pre-decease, her life 
 estate in lots 9 and 23 excepted ; and that, on the other hand, 
 she should control the disposition of all her estate, if she should 
 pre-decease him; and they have ‘provided against” any other 
 construction of their contract: first, by an express and clear de- 
 
s 
 
 65 
 
 claration of their purpose; and, secondly, by covenants that can- 
 not possibly be referred to any other law than that in force at the 
 time of decease. 
 
 But they did, in fact, I believe, contemplate the possibility of a 
 change in the law; for the consideration of such a possibility is 
 almost inseparable from a contract of this character: the very 
 object of which is, that the provisions of the contract shall take 
 the place of the provisions of the law that, but for the contract, 
 would distribute the property —namély, the law in force at the 
 time of decease. But the argument does not rest on this general 
 presumption alone, but also on the terms of the contract, and 
 other considerations. Thus, in strict harmony with their declara- 
 tion of intent, and providing against any change of the law, we 
 have Mr. Ross’ covenant not to claim life rent; although, as the 
 law then stood, there could be no curtesy without issue born. 
 And, on the other hand, we have her covenant to release all his 
 personalty; though, by the then existing law, a widow could claim 
 but a third. And when we look outside of the contract to the 
 legislation of the State, most fluctuating on this subject about 
 that period, we are strongly impressed with the belief, that no 
 sensible person would have entered into such a contract, without 
 provisions to meet a change. Prior to the Wills Act of 1840, 
 (1 Curwen, 691, sec. 46,) a husband could bequeath his person- 
 alty as he pleased, except that his widow would perhaps be enti- 
 tled to a year’s maintenance. For it was only of personalty, in 
 respect to which the husband died intestate, that a widow was 
 entitled to a portion as distributee. But by the construction given 
 to sec. 46 of that act by some of the profession, if she failed to 
 elect to take under the will she became entitled not merely to her 
 dower as before, but also to distribution. This construction, 
 however, was displeasing to the legislature; and so, in 1842, the 
 old rule was reinstated, or attempted to be, by a declaratory act. 
 (2 Curwen, 896.) The next winter (1848) this declaratory act 
 was repealed, and sec. 46 “revived,” (2 Curwen, 950,) from 
 which it resulted, that if aman died leaving issue, his widow 
 might take one-third, if without issue, the whole, of his personal 
 estate, by virtue of the statute of distributions, and in despite of 
 
 9 
 
66 
 
 his will. To give her all, was thought by the legislature of 1846 
 to be wrong; and, therefore, it was then provided that, issue or 
 no issue, she should have but a third. (2 Curwen, 1255.) So, 
 in the short period of six years next preceding the marriage of 
 Mr. Ross, the law, upon the very subject of a widow’s share of 
 her deceased husband’s personalty, was changed no less than four 
 times. Under such circumstances, I think any intelligent man or 
 woman, entering into a marriage contract, would contemplate fur- 
 ther changes; and they might well anticipate a change that 
 would give a widow all the personalty, in default of issue—for 
 such had been the law under the acts of 1840 and 1843, and such 
 was still the law in regard to intestate estates. 
 
 In addition to these various considerations, are the views I have 
 presented in another part of this argument, in respect to the age, 
 character, habits, situation, views and objects of the parties; all 
 showing that the contract, upon our construction, is reasonable, 
 and in strict accordance with the objects and intent of the par- 
 ties. 
 
 A word about the interpretation of contracts. Of course I ad- 
 mit that the object of all interpretation is to discover the intention 
 of the parties, and that that intention, when discovered by such 
 means as the law permits, must govern; if the language of the 
 contract can be made to give it effect. But it is not to be forgot- 
 ten, that where there is no ambiguity in the terms of a contract, the 
 intent of the parties is to be looked for in those terms alone. Itis 
 a rule as old as the law, and as much a rule now as when it was 
 first adopted, that, “quoties in verbis nulla est ambiguitas, ibi 
 nulla expositio contra verba fienda est,” (Broom’s Max. 394), or, 
 as it is sometimes expressed, that “‘it is not allowable to interpret 
 what has no need of interpretation.” Hildebrand v. Fogle, cited 
 by counsel, in nowise militates against this rule; for there the con- 
 tract was ambignous, and upon the interpretation given to it in 
 the court below, was contradictory. It was a contract for carry- 
 ing the mail, payment to be made “quarterly;” and the difficul- 
 ty was to know what was meant by this word. If interpreted to 
 mean quarterly from the date of the contract, the payments would 
 not fall in the months specified as those in which they were to be 
 
67 
 
 made—if quarterly according to the Post Office division of the 
 year, there would be less inconsistency. It was therefore very 
 proper to hear proof of the usage of the Post Office Department and 
 its contractors, and of the construction which the acts of the par- 
 ties had placed upon the contract, to aid in ascertaining in what 
 sense the word was used. ‘This is all that that case decides; and 
 there is not a word in it that authorizes a court to enlarge, vary 
 or restrict the language of a perfectly unambiguous agreement— 
 much less to disregard the plainly expressed intent of the parties, 
 written down by themselves in their very agreement, and with 
 which all their covenants are perfectly harmonious. 
 
 But if we look outside of this contract for aid in its interpreta- 
 tion, every fact and circumstance we find tends directly to show 
 that the intention of the parties was precisely that which the con- 
 tract imports. 
 
 Wilson v. Rousseau, 4 How. 646, does not help the plaintiff. 
 The question there was as to the meaning of the word ‘‘renewal” 
 in the following covenant: ‘‘ And the two parties further agree, 
 that any improvement in the machinery, or alteration, or renewal 
 of either patent, such improvement, alteration or renewal shall 
 inure to the benefit of the respective parties interested, and may 
 be applied and used within their respective districts, as hereinbe- 
 fore designated.” 
 
 At the date of this covenant, there was no law for the renewal 
 of a patent beyond the term of the original grant, but it might be 
 done by a special act of Congress. But there was a thing per- 
 mitted, in the nature of a renewal, to wit: a surrender of a defec- 
 tive patent end the grant of a new one in lieu of it. So there 
 were two modes of renewal then known to the law, or usage; ei- 
 ther one of which would satisfy the word “renewal” in the cove- 
 want; and hence there was no necessity to resort to the extension 
 for seven years, under the subsequent general law of Congress, to 
 find something for the word to operate upon. In view of this 
 fact, and also of the nature of the property, and of the total 
 absence of anything in the contract manifesting a more enlarg- 
 ed purpose, the court held that the renewal upon a surrender of 
 the old patent was that contemplated by the parties. 
 
68 
 
 They first, by a statement of the law at the date of the con- 
 tract, show that the covenant may be satisfied without resorting 
 to the subsequent law. I have shown that the only law that will 
 satisfy the plaintiff’s covenants here, is that which was in force at 
 Mr. Ross’ death. 
 
 They next advert to the nature of the property, saying, ‘that 
 the parties would naturally look to the established system of law 
 on the subject in arranging their several rights and obligations, in 
 dealing with property of this description, rather than to any 
 possible change that might be effected by private acts of Congress 
 upon individual application.” I have shown that the parties to 
 ante-nuptial contracts, like that under consideration, would ‘‘natu- 
 rally look” to the law that might be in force at the time of de- 
 cease— and that this is especially true in the present case. 
 
 They next show, that had the intention been to embrace the pro- 
 visions of the subsequent law, effect would have been given to 
 that intention. They say: ‘Contracts are usually [not uni- 
 versally | made with reference to the established law of the Jand, 
 and should be so understood and construed, unless otherwise 
 clearly indicated by the terms of the agreement.” I have 
 shown that.marriage contracts, like that before your Honor, are 
 exceptions to this usual rule; but were it otherwise, this case 
 comes directly within the above qualification; for here the inter- 
 pretation for which we contend is “clearly indicated by the terms 
 of the agreement ” 
 
 In conclusion, they remark: ‘If the parties in this ease con- 
 templated any alteration or modification of their rights, more ad- 
 vantageous, by the further legislation of Congress, we think some 
 more specific provision, having reference to it, should have been 
 inserted in their covenant. The term renewal may be satisfied by 
 a reference to the law as it then stood. The patentee might sur- 
 render his patent, and take out a new one, within fourteen years ; 
 and the term was used, probably, to guard against any question 
 that might be raised as to the right under the assignment in the 
 new patent, if a surrender and new issue should become neces- 
 sary. The specification accompanying the patent was a compli- 
 cated one, and has been the subject of much coutroversy; and the 
 
bY 
 
 necessity of a surrender, for correction and amendment, might very 
 well have beea anticipated. We think this view satisfies the use 
 of the term, and that no right is acquired in the new grant by 
 virtue of the assignment or covenant.” 
 
 I have already shown that the contract in question presents no 
 such case as these observations indicate ; and that our interpreta- 
 tion, instead of being weakened, in fact finds support in the rea- 
 soning and language of the court. 
 
 The United States v. Kirkpatrick, 9 Wheat. 720, may be more 
 briefly considered. It was asuit on a collector’s bond, the condition 
 of which was in the very words prescribed by an act of Congress ; 
 and it principally referred, said the court,. “as will appear on an 
 inspection of the act, to assessments of direct taxes.” Subse- 
 quently, Congress extended the duties of collectors, and expressly 
 extended the liability under their bonds, to cover these new du- 
 ties. This was considered by the court to be a legislative decla- 
 ration that the previously executed bonds would not cover the new 
 duties ; for if they would, the act extending the condition was 
 wholly nugatory. And so, because the first named act showed by 
 inspection—that is, on its face—the limited nature of the condi- 
 tion, and because this limited nature had, in effect, been declared 
 by the subsequent act, the court held that the bond did not em- 
 brace the new duties. The case turned upon no general rule 
 whatever; and there is nothing in the decision, nor a word of the 
 court, that applies to a case like the present. 
 
 Story’s Conflict of Laws, Sec. 276, and Decouche vs. Save- 
 tier, 3 J. C. KR. 190, cited by counsel, only affirm the general doc- 
 trine that contracts, not relating to realty, are governed by the 
 lex loci contractis. They do not touch the question now under 
 consideration. 
 
 Counsel say that this case resolves itself into a bargain for an 
 expectancy, and that Mr. Hunter so admits; and they refer to 
 divers authorities upon that branch of the law. But they misap- 
 prehend Mr. Hunter, if they suppose that he means to class mar- 
 riage contracts with “catching bargains,” as purchases of expec- 
 tancies are frequently called. He merely states the well known 
 principle, (Argument, p. 76,) that Mr. Ross having given a yal- 
 
70 
 
 uable pecuniary consideration, he stood in the position of a pur- 
 chaser for such a consideration, and not for the mere considera- 
 tion of marriage alone; and hence the defendants are not volun- 
 teers. This is indisputably true; but to say that in decreeing a 
 specific performance of marriage contracts, courts require the 
 same adequacy of pecuniary consideration that they sometimes do 
 when called upon to execute bargains for expectancies, would be 
 manifestly untrue. No court or text writer has ever placed the 
 two cases in the same category ; but, on the contrary, as already 
 shown, the same courts that regard with suspicion sales of expec- 
 tancies, favor the specific performance of marriage agreements, 
 and hold that when made by adults, “any provision, however in- 
 adequate,” will suffice. And there is nothing whatever in ee 
 Hunter’s remarks that favors any other conclusion. 
 
 But suppose it were treated as a sale of an expectancy, what 
 follows? Why, at most, that the contract must be reasonable, or 
 its performance will not be decreed. But the contract here is 
 reasonable; and so, in any point of view, the argument comes to 
 nothing. As to the question of reasonableness, I have only to 
 refer to what I have hereinbefore said. Your Honor will not 
 fail, however, to observe, than even a gift of an expectancy, if 
 unimpeached, will not be set aside.— Sullivan v. Sullivan, 
 supra. 
 
 Counsel seem to argue that the specific performance of a per- 
 fectly valid contract may be defeated by a subsequently enacted 
 law, which makes it more valuable to one of the parties than. it 
 would have been had the law remained unchanged. If this is 
 their meaning, I utterly deny their proposition, and say, not only 
 that it finds no support in any adjudication, but that it directly 
 conflicts with the constitutional provisions against impairing the 
 obligation of contracts. Why, how would sucha principle work ? 
 Not to multiply illustrations, let us suppose cases that have fre- 
 quently occurred. A man in possession of land under a defective 
 title, covenants, for a valuable consideration, less however than 
 the actual worth of the land, to convey it to another by warranty 
 deed.. Before he makes the conveyance, the Legislature pass a 
 five years’ limitation act, like that of 1840, (Swan’s St., old ed. 
 
71 
 
 368, § 160;) or a seven years’ act, like that of 1849, (Swan’s St. 
 new ed. 628, note;) or an act cutting off savings in favor of non- 
 residents, as was done by the act of 1846, (Swan’s St. ibid. note;) 
 and thereby the title of the vendor becomes perfect; as many ti- 
 tles were thus perfected; what court could refuse a decree for spe- 
 cific performance on account of this legisiation? And yet he 
 might have sold the land for much less than he would have requi- 
 red had his title been good at the time of the sale. 
 
 Again: Suppose Mrs. Ross had died after July 1, 1853, leav- 
 ing her husband surviving, and he had claimed curtesy in her real 
 estate, saying: ‘True it is, I covenanted in my ante-nuptial con- 
 tract not to make this claim ; but as the law then stood, there could 
 be no curtesy without issue born, and issue of my marriage was 
 impossible. But by the subsequent act of 1853, curtesy is given 
 thovgh there be no issue, and therefore my contract creates po 
 bar ”—what court would have listened to him for a moment ? 
 
 But why do counsel limit their proposition to a change of the 
 law? If subsequently occurring inequality constitutes an objec- 
 tion to specific performance, what matters it how the inequality is 
 produced? A man or woman’s fortune may be increased by 
 events quite as unexpected, quite as foreign to their contemplation 
 when executing their contract, as a change of tne law. The un- 
 expected death of a relative, an unlooked for bequest, an un- 
 hoped for rise in the value of property, an unforeseen success in 
 business, may swell a man’s estate tenfold ; but who ever heard that 
 it discharged him from his contracts, or extended his liabilities ? 
 
 Counsel say that we are in a court of equity, not in a court of 
 law. But it is unnecessary to remind your Honor, that contracts 
 are construed in the one court precisely as they are in the other. 
 
 But it is useless to pursue this inquiry further, for the whole 
 matter is in a nutshell. It is simply this : 
 
 1. The terms of the contract cover the whole property, as the 
 counsel themselves are compelled to admit. 
 
 2. These terms are so clear and unambiguous, that they alone 
 can be looked to for the intention of the parties. And that intent 
 is shown not only by covenants that cannot be satisfied except upon 
 our construction, but it is also expressly recited in the preamble 
 
72 
 
 of the agreement. -And no case can be found of an interpreta- 
 tion, or construction, of a contract contrary to such an express 
 declaration of intent, the covenants being consistent therewith. 
 
 3. But if matters dehors can be looked at, they strengthen, in- 
 stead of weakening, the natural import of the terms of the agree- 
 ment. 
 
 IV. Before proceeding to consider whether the case is affect- 
 ed, and if so, how affected, by the fact that Mr. Ross did not de- 
 vise lots 9 and 23 to the plaintiff, I will notice an observation of 
 
 counsel in respect to her furniture. It is a small matter, and I 
 might safely apply to it the maxim de minimis, &c.; but as it 
 may be briefly answered, I will do so. They say: ‘“ He nomi- 
 nally surrendered his right to the furniture of the house, but took 
 possession of it all with the house, immediately on the marriage ; 
 and by omitting to purchase other furniture to replace it, put it 
 out of her power to withdraw it from his possession, until it was 
 consumed in his use. Indeed, it would have been felt as an un- 
 kind act had she withdrawn it; she therefore could not do it with- 
 out a sacrifice much beyond its value. He might have purchased 
 furniture and brought it to the house to replace hers—she could 
 not request him to do it.” | 
 
 Now, may it please your Honor, there is nothing in the case to 
 warrant this statement, that Mr. Ross would have felt it an un- 
 kind act, had the plaintiff disposed of her furniture; and such 
 an inference is utterly repelled by his almost religious regard for 
 the sanctity of contracts, and his extraordinary exactitude in their 
 performance. This was the natural character of the man, 
 strengthened by the unbroken habit of a lifetime ; and there prob- 
 ably never was a man who would have been less likely to feel un- 
 kindness at being required to perform his engagements. But I 
 can well conceive that Mrs. Ross might have felt it unkind, and 
 with reason, had he deprived her of the use of her furniture by 
 bringing in furniture of his own to displace it, without her re- 
 quest. It requires but little knowledge of womankind to per- 
 
2 
 
 7 
 
 Na 
 
 ceive that to ask a woman to send to an auction (for that would 
 have been the effect of his doing what counsel suggest) the ar- 
 ticles that her taste had selected, upon which her care had been 
 bestowed, to whose use she is accustomed, and many of which 
 are the work of her own hands, would be anything but a 
 gracious request. Among all the sarcasms that have been ut- 
 tered against the sex, all the charges made against them of love 
 of change and finery in dress and mansion, I have never seen one 
 accused of desiring to disfurnisht her house in order to futnish it 
 no better; and it is not pretended that Mr. Ross should have 
 furnished the plaintiff’s more comfortably or elegantly than it was 
 furnished. 
 
 But it is unnecessary to argue this question, for it is settled 
 by the pleadings. The answer avers: ‘That the said William 
 Ross, at all times during his life, after his marriage with the 
 plaintiff, in strict conformity with, and in fulfillment of, his part 
 of said contract, and the said modification thereof, did not, in 
 any way or manner, set up or assert any claim or right, in virtue 
 of said marriage, to any part of the personal estate of the plain- 
 tiff; and did leave all of her said personal estate to be managed, 
 controlled and disposed of by the plaintiff herself, as fully and 
 freely ‘as if she had not been married to the said William Ross ;’ 
 and they aver that the plaintiff, at all times during the life of the 
 said William Ross after said marriage, did, in pursuance of said 
 ante-nuptial contract, and in virtue of the rights thereby secured 
 to her, take control over her said personal estate, and did manage 
 and dispose of the same, according to her own will and pleasure, 
 as fully and freely as if she had not been married to the said 
 William Ross; and in so controlling, managing and disposing of 
 said personal property, she, the said plaintiff, of her own free 
 will and pleasure, without any claim of right thereto on the part 
 of said William Ross, took with her and caused to be brought to 
 her, whilst she resided with the said William, after their marriage, 
 so much and such parts of her said personal property as she chose, 
 and used the same according to her own will and pleasure, in the 
 family, subject, at all times, to be removed or otherwise disposed 
 of by her; and in any use or care over the same which may have 
 
 19 
 
74 
 
 been exercised by the said William, at any time, he acted in con- 
 formity with her wishes, subject to her direction, and in her be- 
 half; and that both of said parties, at all times, to the day of his 
 death, recognized said ante-nuptial contract as in full force be- 
 tween them, modified as aforesaid.” 
 
 Not one word of these averments is denied, either directly or 
 inferentially, by the Reply. They, therefore, stand admitted, 
 and leave no question as to Mr. Ross’ performance of his cove- 
 nant in respect to the plaintiff’s personalty. 
 
 But were. it otherwise, there is not one particle of proof that 
 _ even tends to controvert them, or either of them. 
 
 V. It will facilitate the argument and understanding of some 
 of the points hereinafter to be discussed, to now consider whether 
 the contract, in the view of a court of equity, remained execu- 
 tory after the marriage took place, or whether it then became, in 
 equity, an executed contract, either in whole or in part. I say, 
 either in whole or ia part; for, obviously, a contract may be in 
 part executed, and in part remain executory ; and as to the exe- 
 cuted part, it is equally obvious that the principles that regulate 
 the rights of parties in executed contracts, and the action of 
 courts in meddling with or setting them aside, may have full ap- 
 plication. 9 How, U.S. Rep., 212. It is true, that the de- 
 cision of this case does not depend upon the question, whether 
 this contract is to be regarded as executed or executory ; for if it 
 is the latter, still it is entitled to enforcement; yet, as an execu- 
 ted contract, is not open to many of the observations of the 
 plaintiff’s counsel; and as it will tend to simplify the case to show 
 that, for the purposes of the present investigation, this is such a 
 contract, I will now endeavor to render it manifest. 
 
 In considering this point, it is necessary to always bear in mind 
 that we are in a court of equity, dealing with an equitable con- 
 tract; for what is regarded by such a court, which looks only to 
 the substance and not to the shadow of things, as executed, may 
 
75 
 
 not be so regarded by a court of law, tied down by arbitrary and 
 technical rules. : 
 
 Now, may it please your Honor, what are the covenants of 
 these parties ? 
 
 In the first place, ‘Jean Welsh, on her part, agrees, and 
 hereby binds herself, to waive, renounce and relinquish ail claim 
 and right of dower ia and to the real estate of the said William 
 Ross, to which, by law, she would have right, and to which she 
 would be entitled at the death of William Ross; and she further 
 agrees, and hereby binds herself, to waive, renounce and relin- 
 quish all the share or portion of the personal estate of the said 
 William, to which, by law, she would have right, in the event of 
 his death.” 
 
 A moment’s reflection will show that nothing further, on the 
 part of Mrs. Ross, is necessary to give effect to these covenaats 
 in a court of equity; for no release, however formal, executed 
 after her husband’s death, could render the bar more complete in 
 the eyes of a chancellor, than it is by force of these covenants, if 
 they remain. obligatory. Gelzer v. Gelzer, and Hardy v. Van 
 Harlingen, supra. There has, therefore, been nothing further for 
 her to do, either during the coverture or since its termination. 
 
 Let us now turn to Mr. Ross’ covenants, to wit: “The said 
 William Ross, on his part, hereby agrees and binds himself 
 to devise and bequeath, in his last will and testament, unto the 
 said Jane Welsh, in lieu of her dower, in the eveat of her becom- 
 ing the wife of the said William Ross, and also his widow, the 
 following described property, to be held and possessed by her for 
 her sole use and benefit during her natural life, the occupancy and 
 enjoyment of which to commence at the death of the said Wil- 
 liam Ross, viz: all the parts or portions of in-lots No. 9 and 23, 
 in the city of Chillicothe, which the said William Ross now owns 
 and possesses, or which he may hereafter own or possess, with 
 the appurtenances and improvements thereon, or thereunto be- 
 longing, or which may hereafter be thereon. 
 
 “The said William Ross also waives, renounces, and relinquishes, 
 in the event of the said Jane Welsh dying before him, all claim 
 or life rent, to which he might be entitled by law, in and to the 
 
76 
 
 real estate of the said Jane Welsh, which she now owns, or of 
 which she may hereafter become owner, by devise, grant, ur other- 
 wise. 
 
 “And he also waives, renounces, and relinquishes all right to 
 possession or control of her personal estate, to which, by law, he 
 might be entitled, during coverture or afterwards; and leaves all 
 her personal estate to be managed, controlled and disposed of by 
 herself as fully and freely as if she had not been married to the 
 said William Ross.” 
 
 What I have said in relation to the plaintiff’s covenants, evi- 
 dently applies to Mr. Ross’ covenants in respect to curtesy and 
 the personalty. “In the view of equity, nothing more remained 
 for him to do to bar himself effectually from any right to either. 
 Indeed, his covenants necessarily prevented his marital right from 
 ever attaching to his wife’s personalty ; and so her title to it re- 
 mained as good, if not at law, at least in equity, after the mar- 
 riage, as it was before. 
 
 It: follows that after the execution of the contract, and the mar- 
 riage of the parties, there was nothing further for Mr. Ross to 
 do, but to devise the parts of lots 9 and 23 to the plaintiff. But 
 what would such a devise have effected, supposing him to have 
 died seized of that property ? Manifestly nothing more than to 
 vest in his widow the legal title to property, to which, with- 
 out the devise, her equitable title would have been perfect. Will 
 any lawyer pretend that, had Mr. Ross died owning that 
 realty, and without devising it according to his covenant, the 
 plaintiff could not have compelled his heirs, or devisees, or a pur- 
 chaser with notice, as the case might be, to convey to her a life 
 estate therein? I don’t think any one will so pretend; for if 
 there is anything well settled, it is that a covenant, upon sufficient 
 consideration, to devise a real estate, will be specifically decreed. 
 5 Am. Law Reg., 177; 1 Dessau. 116, note; 3 Ibid. 195; 8 
 Ves., 402; 7 D. and E., 138; 6 Ves., 150; 19 Ib., 71; 5 Ibi, 
 3866; 3 Amb., 882; 9 Sim., 644; 9 Com. L. and Eq. Rep., 
 136; 38 Dessau. 190; 1 Vermt., 48. And that an agreement to 
 settle a jointure will be specifically decreed against a purchaser 
 with notice, see Bright’s Hus. and Wife, 4738, § 12 and 13. 
 
77 
 
 The plaintiffs equitable title would therefore have been com- 
 plete ; for it is only by force of such a perfect equitable title that 
 she could have obtained such a decree. 
 
 But how could it be otherwise on principle’or authority ? She 
 was a purchaser of a life estate in the land; for, ¢nter alia, one 
 of the highest considerations known to the law, marriage. Now, 
 the vendee of land, even before payment of the consideration, is 
 its equitable owner. The established doctrine is, that on a sale 
 of land, and before payment ofthe purchase money and convey- 
 ance, the vendor holds the Jegal title in trust for the vendee, who 
 is the owner in equity ; and the vendee holds the purchase money 
 in trust for the vendor. 15 Barb. 557; 2 Wheat. 5177; 10 Pet. 
 532; Story’s Hq. §§. 789 to'792 and 1212. A fortiori is the 
 vendee seized of the equitable title after payment of the conside- 
 ration — which is precisely this case. By the marriage the plain- 
 tiff paid the consideration. It is true, marriage was not the sole 
 consideration ; for her covenant not to claim dower, and also, as 
 her counsel say, her covenant not to claim distribution, entered 
 into it. But as these covenants effectually barred such claims 
 without anything further to be done by her, the whole considera- 
 tion was received by Mr. Ross the moment the marriage took 
 place ; and the plaintiff was a purchaser for an executed consid- 
 eration, and because, eo instanti, seized of a perfect and inde- 
 feasible estate in equity. 
 
 Nor does it matter in the least, so far as the present point is 
 concerned, whether the contingent estate, (contingent, because de- 
 pendent upon survivorship,) thus vested in her, was or was not 
 alienable by her during the coverture ; for, in either case, her 
 title to it was none the Jess perfect, nor the contract any the less 
 executed. It was, in fact, alienable, if a legal jointure is alien- 
 able ; but whether it was or was not so alienable as to remain in 
 a purchaser as a substantive, subsisting and continuing estate, it 
 had, at least, the quality of an inchoate dower right, and could, 
 therefore, be released by a statutory deed of husband and wife. 
 And it had these further qualities, that her husband had no inter- 
 est in, or control or dominion over it; and that by no act save 
 her own, or that of the Almighty, removing her from this world 
 
78 
 
 before her husband, could it be incumbered, aliened or ex- 
 tinguished. 
 
 And now, I put it to your Honor, in view of these facts, 
 whether, in the eyes of the chancellor, this was not an executed 
 contract the moment the marriage took place? Why, what was 
 there —in substance, not form, in equity, not herens in cortice 
 law —that remajued to be done? What would the plaintiff have 
 had to do to entitle her to a decree for the land, had Ross died the 
 next minute after the marriage ceremony? Nothing. What 
 would he have had to do to secure her estate to her heirs or de- 
 visees, had she, not he, died that minute? Nothing. What 
 would a devise of the lots have given her, had such a devise been 
 made? Nothing but a bare legal title to that which she already, 
 in equity, owned. And yet counsel ask a chancellor, whose bus- 
 iness it is to disregard form and figments, and look only to sub- 
 stance and justice, to call this an executory contract, though 
 nothing substantial remained to be executed, and upon a scin- 
 filla juris, an imaginary difference, as respects this case, between 
 executory and executed, to absolve the plaintiff from her solemn 
 obligations. 
 
 But let us pursue the subject a little further, and mark the dif- 
 ference between this case and those in which something substan- 
 tial remains to be performed. Counsel say, that this contract 
 rests in covenant ; that it is not a settlement, but only a covenant 
 to settle. I deny the proposition, and maintain that, in equity, it 
 is, per se, a settlement. Were it a mere covenant to devise un- 
 designated lands, as in the Alabama case, supra; or to settle 
 lands of a certain value, not specifying them; or a rent charge, 
 without designating the land out of which it should arise; or 
 were it a mere personal covenant, as to settle an annuity; ora 
 covenant to create a trust not accurately defined —each of which 
 cases is frequently met with in the books — counsel would be right 
 in calling it executory ; for, in such cases, the covenant cannot, 
 per se, for want of designation, or accurate definition, vest an 
 estate or property in any particular land or money. But where, 
 as in this case, the particular thing is designated, there is no such 
 difficulty ; and, if there be no other condition precedent than mar- 
 
 i 
 
79 
 
 - Yiage, which is also this case, the covenant does operate to vest 
 an equitable title in the wife the moment the marriage takes place; 
 and the husband becomes that moment her trustee of the legal 
 title. The intervention.of a third person as trustee is unneces- 
 sary; for, as said by Story, (2 Com. on Eq., § 1380,) ‘in all 
 such cases the husband will be held a mere trustee for her; and, 
 although the agreement is made between him and her alone, the 
 trust will attach upon him, and be enforced in the same manner, 
 and under the same circumstances, that it would be if he were a 
 mere stranger. It will make no difference, whether the separate 
 estate be derived from the husband himself, or from a mere 
 stranger ; for, as to such separate estate, when obtained in either 
 way, her husband will be treated as a mere trustee, and prohibited 
 from disposing of it to her prejudice.” And see Huber v. Huber’s 
 Ad’m., 10 O. R. 372; Neves v. Scoit, 9 How. U.S. R. 212. 
 Here, then, for a valuable consideration, was a trust creaced, 
 about which there is not the least uncertainty, either to as the par- 
 ties or the subject matter; a trustee being provided by operation 
 of law, the cestui que trust being expressly designated, and the 
 subject matter of the trust—a life estate in well described pro- 
 pety—being accurately defined, leaving nothing further to be 
 done by either party to vest in the cestui que trust a perfect 
 equitable title. And now, how will this trust be treated in a 
 court of equity—as an executory or an executed trust? Counsel 
 say: “A covenant is not executed, nor a trust created by it, 
 if it contemplate a future act of the covenantor, as if it be a 
 covenant to transfer stock, or, as in this cause, a covenant to de- 
 vise lands in consideration of a covenant to relinquish dower and 
 distribution.” It is, certainly, true, that a covenant to convey 
 or devise is not, literally speaking, executed, until the convey- 
 ance or devise be made; though a court of equity, if justice re- 
 quire it, will regard it as executed, on the familiar principle of 
 holding that to be done, which ought to be done; but, to say 
 that such a covenant, founded on a valuable doiiilenattiin 
 does not create a trust, is surely novel doctrine. If this be so, 
 what becomes of the well settled rule, that, upon a sale of land, 
 by articles, the vendor becomes a trustee of the legal title for 
 the vendec, and the latter a trustee of the purchase money, 
 
80 
 
 if unpaid, for the vendor? (See ante, p. 77.) Are there such 
 things as trustees and cestvis que trust without a trust being 
 created? In order to create the trust, the learned counsel re- 
 quire, it would seem, that the conveyance or devise be actually 
 made; but, with deference, I submit, that that, instead of creat- 
 ing, would put an end to the trust, by investing the same person 
 with both the legal and equitable title. In support of their 
 views, they quote a part of a sentence from 2 Story’s Eq., See. 
 983, the whole of which I will give, as I humbly think it sup-— 
 ports my views. Story says: ‘“ And, in the first place, in re- 
 gard to marriage settlements, where an instrument, designed as a 
 ‘marriage settlement, is final in its character, and the nature and 
 extent of the trust estates, created thereby, are clearly ascertain- 
 ed and accuraiely defined, so that nothing further remains to be 
 done, according to the intention of the parties; there, the trusts 
 will be treated as executed trusis, and courts of equity 
 will construe them in the same way, as legal estates of th 
 
 like nature would be consirued at law upon the same lan- 
 guege.” 
 
 Now what is here meant by a settlement being “final in its 
 character,” and by the expression, ‘“‘so that nothing further re- 
 mains to be done according to the intention of the parties?” Is it 
 meant that a conveyance or devise of the Jegal title must be execut- 
 ed to the person upon whom the settlement is made? That is the 
 scope of the learned counsel’s observations, but it cannot be so; for 
 then, as above shown, there would be no trust at all; and what Sto- 
 ry says about the trusts being treated as executed trusts, and courts 
 of equity construing them as legal estates are construed, would be 
 sheer nonsense. Is it meant that in order to create the trusts, the 
 legal title must be conveyed to_a third person? This cannot 
 be, for the husband. may be the trustee, as I have already shown 
 by the same author, as well as by our own reports. What, then, 
 is meant? Story himself has answered, in his note to the above 
 section, 983, where he says: ‘Lord Eldon, in Jervoise v. Duke 
 of Northumberland, (1 Jac. and Walk., 550, 551,) has taken 
 notice of the confused and inaccurate senses in which the words 
 executory trusts and executed trusts are often used. In one 
 
81 
 
 sense all trusts are execuiory, since the cestwi que trust may call 
 for a conveyance and execution of the trust. But executory 
 trusts are properly those where something remains to be 
 done to complete the intention of the parties, and their act is 
 not final.” From this, it appears that the something remaining 
 to be done is not the transfer of the legal title—for to hold that 
 would, as Story says, make ald trusts executory—but it is some- 
 thing that is necessary in order to define, perfect or clearly 
 settle the terms or subject matter of the trust. In England, 
 it is very common to enter into “ marriage articles,” properly so 
 called, by which a settlement is not finally made, but only an 
 agreement to make a settlement at a future time; the terms of 
 which are frequently left, by the articles, in some degree uncer- 
 tain, and to be determined by mere contingency or further agree- 
 ment. Such was the caseof Zrevor v. Trevor, and some others 
 cited by plaintiff's connsel; and such cases form one of the sub- 
 jeets of Story’s remarks in the section above quoted from. In 
 these cases the trusts are executory, because “something remains 
 to be done to complete the intention of the parties, and their act 
 is not final ;” in other words, the trust they intend to create is 
 not yet ‘clearly ascertained and accurately defined ;”? and for 
 that reason, and not for want of a conveyance or a devise, the 
 articles are not final. But when the articles, as in this case, leave 
 nothing to be done, in order to ascertain and perfectly define the 
 trust, they are as final as any instrument can be; and the trust 
 created is treated in equity as an executed trust. 
 
 The same principle is stated in Hill on Trustees, 328, as follows: 
 “Where directions are given for the execution of some future 
 conveyance or settlement of trust property, but the particular 
 limitations are not fully or accurately specified, this is an ex- 
 ecutory trust; and in carrying such a trust into execution, regard 
 must be had to the general intention, rather than to the technical 
 import of any particular expressions used. The distinction be- 
 tween trusts executed and executory, though questioned by Lord 
 Hardwicke in an early case, has been long firmly established as one 
 of the settled doctrines of the court. And this doctrine applies 
 
 equally, whether the executory trust be created by marriage arti- 
 11 
 
82 
 
 cles, or by will or voluntary settlement.” And, again (page 332): 
 ‘This at once leads to the observation, that it is only where some- 
 thing is left ¢xcomplete and executory by the creator of the trust, 
 that equity would mould or modify the words in order to give 
 effect to the intentions of the parties. For if the limitations of 
 the trust estate are definitely and finally declared by the in- 
 strument itself, that will be an executed trust; and it must be 
 carried into execution as strictly and literally as if it were a lim- 
 -_itation of the legal interest.” 
 
 And so, Lewin on Trusts and Trustees, page 48, “A trust ex- 
 ecuted is where the limitations of the equi/able interest are com- 
 plete and final; in the executory trust, the limitations of the 
 equitable interest are not intended to be complete and final, but 
 merely to serve as minutes and instructions for perfecting the set- 
 tlement at some future period.” 
 
 Here it cannot be denied that the limitations of the equitable 
 interest in the lots to the plaintiff is complete; and, consequently, 
 the trust is executed, not executory. 
 
 The same doctrine is very clearly stated and expressly applied 
 in Neves v. Scott, supra; a case in many respects like the pre- 
 sent, and to which I invite the special attention of your Honor. 
 It was a case of an ante-nuptial contract, without the intervention 
 of a third person as a trustee, and without a transfer of the legal 
 title to the property, and its enforcement was resisted on the same 
 grounds here taken, to wit: that it was merely executory in its 
 nature, and the plaintiffs were volunteers. But the court held the 
 contrary, and in considering the nature of the instrument, said: 
 “There is another ground, unembarrassed by conflicting authori- 
 ties or refined distinctions, which the court are of opinion is deci- 
 sive of the questions involved in favor of the complainants. And 
 that is, that the deed in question is a marriage settlement, com- 
 plete in itself—an executed trust, which requires only to be obey- 
 ed and fulfilled by those standing in the relation of trustees, for 
 the benefit of the cestui que trusts, according to the provisions 
 of the settlement. The defendants are not called upon to make a 
 settlement of the estate, under the direction of the court, from 
 imperfect and incomplete marriage articles, and which might or 
 
83 
 
 might not be subject to the objections stated. The settlement has 
 been made by the parties themselves; and the only question is, 
 whether the defendants shall be compelled to carry it into execu- 
 tion. The distinction between trusts executed and executory is 
 this: a trust executed, is where the party has given complete di- 
 rections for settling his estate, with perfect limitations ; an execu- 
 tory trust, where the directions are incomplete, and are, rather, 
 minutes or instructions for the settlement.” (Page 211.) 
 
 And being an executed trust; they say, ‘the effect must be the 
 same whether the estate is equitable or legal ”—and this upon the 
 ground that eqnity follows the law. (Ib.) 
 
 And on the next page they say: ‘If a third person had been 
 interposed as trustee of the estates, with the limitation as found 
 in the instrument, no one could, for a moment, have doubted but 
 that the settlement would have been final and complete; and yet 
 it has long been settled, that equal effect will be given to it in 
 equity, when made only between the parties themselves; each one 
 will be regarded, so far as may be necessary to effectuate their in- 
 tent, as holding their several estates as trustees for the uses of the 
 settlement. (2 Story’s Eq. § 1380, Fonbl. book 1, ch. 2, § 6, note 
 n; 2 Kent’s Com. 162,163; 9 Ves. 375, 383; 3 J.C. R. 540.) 
 There can be no objection to the execution of the trust on this 
 ground.” 
 
 Trevor v. Trevor, 1 P. Wms. 622, which plaintiff’s counsel 
 eall “an a fortiori case on this point,” in reality does not touch 
 it; for in that case, instead of the trusts being, in the language of 
 Story, “clearly ascertained and accurately defined” by the mar- 
 riage articles, leaving nothing more to do, they were only partially 
 stated, and were to be ultimately fixed by future direction and agree- 
 ment. The case was, that Sir John Trevor, by articles, covenant- 
 ed “with the frustees therein named, before the end of two years, 
 to settle and assure upon the said trustees, as they, the said trus- 
 tees, should direct and appoint, all the premises to the several 
 uses in the articles expressed, as also in the settlement and con- 
 veyance, as should be limited and agreed upon by Sir John 
 Trevor and the said trustees.” 
 
 Here, then, the articles, instead of being a final settlement them- 
 
84+ 
 
 selves, provided for a settlement to be made within two years ; 
 and, instead of accurately declaring the uses of the settlement, 
 provided for other uses not named, but to be agreed upon be- 
 tween Sir John and the trustees, and inserted in the settlement 
 and conveyance to be made; and the settlement and assurances 
 were to be in such mode and form “as they, the said trustees, 
 should direct and appoint.” It was for these reasons that ther 
 Chancellor said, and very truly, that the articles were not a set- 
 tlement, but only an agreement—indeed, they were exactly what is 
 spoken of in Neves v. Scott, as executory; being “imperfect and 
 incomplete marriage articles ;” not a settlement, but “rather min- 
 utes, or instructions for the settlement.” 
 
 Nor was the case altered by the covenant to stand seized, which 
 was not, as plaintiff’s counsel suppose, a covenant to stand seized 
 in default of making the settlement, but to stand seized until 
 the settlement should be made—and which was, therefore, consid- 
 ered by the Chancellor as a mere “provisional” and temporary 
 seizin. Besides, the uses of the seizin were necessarily as indefi- 
 nite as the articles, and not being ‘clearly ascertained and accu- 
 
 rately defined,” the trust was executory. 
 
 Counsel refer to certain language attributed to Lord Eldon, in 
 Countess of Lincoln vy. Duke of Newcastle, 12 Ves., 227, 230 ; 
 but they have overlooked the fact that, in Jervoise v. The Duke 
 of Northumberland, 1 Jacobs and Walker, 550, his Lordship, 
 after defining executory and executed trusts, just as I contend 
 for, denied that he had ever used that language in a sense incon- 
 sistent with that definition ; if, indeed, he had ever used it at all. 
 
 Counsel seem to employ the language in 12 Ves., as if it im- 
 puted that every covenant in marriage articles is necessarily 
 executory ; whereas your Honor will see, by looking at the case, 
 that it imports no such a thing; and that the distinction referred 
 to, was not between executory and executed trusts, but between 
 the rules of interpretation of the language of wills and of arti- 
 cles, when the trusts created are, in fact, executory. The dis- 
 tinction alluded to is treated of by Story, (1 Com. on Eq., § 984,) 
 and has nothing whatever to do with the point now under con- 
 sideration. 
 
85 
 
 It is proper to note here that the quotation in the argument of 
 counsel from 12 Ves., 230, is inaccurate ; the words “to be exe- 
 cuted,” which should follow the word ‘“ covenant” where it first 
 occurs, being accidently omitted. These omitted words are ma- 
 terial, as they show that the Chancellor was speaking of an ex- 
 ecutory covenant, and not of one that creates an executed trust. 
 
 Coleman v. Sarrell,1 Ves., jr., 50, and Ellison v. Ellison, 
 6 ib., 662, relates to mere voluntary covenants or agreements, 
 without any valuable consideration ; and the language of the 
 Chancellor is to be understood as limited to such cases ; and 
 only affirms the well known rule that a specific performance of a 
 mere gift, resting simply in agreement or covenant, will not be de- 
 creed. When, for instance, he speaks of a ‘“‘ covenant to trans- 
 fer stock,” he does not assert that such a covenant, 7f founded 
 on a valuable consideration, may not create an executed trust; 
 but only that if there is no consideration for it, if it is a mere 
 gift, it will not be enforced unless a transfer to a trustee has been 
 made. These cases stand on a wholly different footing from 
 those in which, owing to the presence of a valuable consideration, 
 the covenantor becomes, as’ we have seen, the trustee of the cove- 
 nantee. 
 
 These observations equally apply to the passage quoted from 
 Bunn v. Winthrop, 1 J. C. R., 337; indeed, that case illustrates 
 what I have said, for the Chancellor, finding a sufficient consider- 
 ation, held that the deed ought to be supported, whether it would 
 be good or not if merely voluntary. There is nothing, therefore, 
 in either of these cases that militates against us; but, on the con- 
 trary, the distinction they draw between voluntary covenants and 
 covenants upon valuable considerations, makes them authorities 
 in our favor. 
 
 Johnson v. Johnson's admr., 23 Mo. Rep., 589, cited by 
 counsel, is also a case in our favor; for it shows that where the 
 property in specie is settled on the wife, as in our case, though 
 only by articles of agreement, the agreement ‘may, perhaps, be 
 very well considered so far executed as to be at once, without any 
 thing further, an equitable bar cf dower, and to be pleaded as such.” 
 
Sb 
 
 Whenever it is necessary to effect justice, courts of equity will 
 consider that as done which ought to be done, and without re- 
 gard to time. Thus among the most familiar instances of the 
 application of this principle, are the cases of covenants, or wills, 
 providing for an investment of money in land, or conversion of 
 land into money; in which cases the conversion will be deemed 
 to have taken place so as to change the course of descent, al- 
 though by the terms of the covenant, or will, it was not to take 
 place until after the owner’s death. This presumption is one of 
 the fictions of the law, invented to subserve the ends of justice ; 
 and the same reasons that required its invention, forbid any limi- 
 tation of it that would. lessen its utility. In Fonblanque’s Eq. 
 Book 1, Ch. VI., § 9, he says: ‘And as this court is to enforce 
 the execution of agreements, and regards the substance only, 
 and not forms and circumstances, it therefore looks upon things 
 agreed to be done as actually performed, as money covenanted 
 to be laid out in land, to be, in fact, a real estate, which shall de- 
 scend to the heir. So, where money is agreed on marriage to be 
 laid out in land, and settled to the use of the husband and, wife 
 for their lives, remainder, &c. * * *;3 this money is bound 
 by the articles, and shall not be assets to satisfy creditors, but the 
 heir shall have it, as the land should have gone, in case the money 
 had been laid out according to the articles.” 
 
 And so in this case, the parts of lots 9 and 23 were bound by 
 the articles; and, but for her own act, the plaintiff would have 
 had them, whether actually devised to her or not, 
 
 In Cooke v. Cooke, 2 Atk., 67, Lord Hardwicke said: 
 “Whether the legal estate is in the cestui que trust or in the 
 trustees, it will make no difference; for where there is a covenant 
 that it should be conveyed, this court will consider it as actually 
 conveyed.” 
 
 In Sidney v. Sidney, 3 P. Wms., 276, the Lord Chancellor 
 said: ‘But the articles being, that the husband shall settle 
 such and such lands in certainty on his wife, the plaintiff, for her 
 jointure, this is pretty much in the nature of an actual and vested 
 jointure ; in regard what is covenanted for a good consideration 
 to be done, is considered in equity, in most respects, as done; 
 
87 
 
 consequently, this is a jointure, and not forfeitable either by 
 adultery or an elopement.” 
 
 In conclusion on this point, I repeat, that in the view of a court 
 of equity, 
 
 1. Nothing remained, after the marriage took place, for the 
 plaintiff to do, to bar herself from dower and distribution. 
 
 2. Nothing remained for Mr. Ross to do, to bar himself from 
 curtesy and his wife’s personalty. Indeed, by force of the con- 
 tract, no marital right ever attached to her personalty. 
 
 3. The covenant to devise, followed’ by the marriage, created 
 an executed trust, and the plaintiff became thereby the equitable 
 owner of a contingent life estate in the premises, of which she 
 could not be deprived save by her own act or her pre-decease. 
 
 4, That this equitable estate has the same effect in a court of 
 equity as would a legal estate; that, in the language of Lord 
 Eldon, 1 Jac. & Walk. 550, approved by the Supreme Court of 
 the United States, and applied to a case like the present, in 
 Neves v. Scott, 9 How. 211, “the effect must be the same, whether 
 the estate is equitable or legal.” 
 
 5. That a legal title to the contingent life estate, if vested in 
 the plaintiff, would have made a perfect Jegal jointure, and she 
 would have been barred both at law and in equity. That ina 
 court of equity, the equitable title has the same effect; and so 
 there was a perfect equitable jointure and bar. 
 
 6. That if a legal jointure is alienable, so was this; for, equity 
 following the law, equitable estates have the same qualities of 
 alienability as legal estates; but whether it was or not so aliena- 
 ble as to remain in the hands of the alienee a subsisting estate, 
 is immaterial ; for it was, at least, extinguishable by a statutory 
 deed as fully as inchoate dower is extinguishable. 
 
 I have so far argued, as if the plaintiff’s covenants would be 
 regarded as executed only by a court of equity, which would not 
 regard any further release as necessary. But I shall presently 
 show, (see post, heads X, XI and XII,) that her covenant, in re- 
 gard to the personalty, operates, per se, even at law; the effect 
 
88 
 
 of it being to prevent any right to distribution from ever attach- 
 ing ; that, in respect to distribution, she is, in the language of the 
 books, “ considered as dead ;” and that, consequently, she can- 
 not get distribution, unless this Court confer it upon her by set- 
 ting her contract aside. Your Honor is not called upon to bar 
 her by enforcing performance of an executory covenant intu 
 which she has entered ; but to relieve her from an existing bar by 
 by avoiding the covenant that creates it. 
 
 VI. The plaintiff, having joined in the conveyance to Mar- 
 field and others, is not remitted to dower or distribution, but re- 
 mains barred. 
 
 Whether her life estate was her separate property, technically 
 speaking, or not— whether she could alien it so as to vest a sub- 
 stantive estate in her alienee or not —whether the post-nuptial 
 contract is valid or not—this proposition is true. It is a propo- 
 sition that steers clear of all difficulties raised, or that can be 
 raised, out of matters occurring subsequent to the marriage — it 
 needs no support from them, and it cannot be prejudiced by them 
 —it needs no post-nuptial agreement, no valuable consideration, 
 to uphold it; but would be impregnable, had no such agreement 
 been made, no compensation been promised or given. 
 
 It is not pretended that the plaintiff was induced to join in that 
 conveyance by any improper means whatever, or that she did not 
 fully understand that she was thereby parting with all claim to 
 the property it conveyed. In the absence of averment and proof 
 to the contrary, the law presumes bona fides and understanding ; 
 and this presumption is strengthened, in the case of a married 
 woman’s deed, by the fact, that she undergoes a privy examina- 
 tion; has the instrument explained to her fully by the officer of 
 the law; and declares that she executed it of her own free will, 
 and is still satisfied therewith. And this presumption obtains, 
 even though the transaction be a gift to the husband — for fraud 
 or undue influence will not be inferred from the mere relation of 
 husband and wife. (Lewis v. Baldwin, and Hardy v. Van Har- 
 lingen, supra.) But here we are under no necessity of relying 
 
89 
 
 on presumptions, however sufficient; for the answer avers that 
 there was no deceit, fraud, or undue influence, practiced in these 
 post-nuptial matters; and this averment is not merely admitted 
 by a failure to controvert it, but the Reply affirmatively shows 
 that the transaction was bona fide and understood. And here I 
 may remark, that it matters not, upon the point now to be con- 
 sidered, whether the idea of selling the property originated with 
 Mr. Ross, or with the plaintiff; or whether the sale was the re- 
 sult of her importunity, or was made at his desire, with her simple 
 acquiescence. In either event, she executed the conveyance vol- 
 untarily, and that is all that is necessary. 
 
 I have next to observe, that the conveyance extinguished her 
 interest in the property; and this wholly irrespective of the doctrine 
 of separate estate — for it was an instrument prescribed by statute 
 as sufficient to transfer any estate, and, as it contains her cove- 
 nant of warranty, she is effectually estopped to set up title against 
 it. Hill’s lessee v. West, 8 O. R. 229. 
 
 The transaction, then, being unimpeached, and the conveyance 
 being effectual to deprive her of the estate in the lots that had 
 been settled upon her, the question arises, is she thereby remitted 
 to dower and distribution ? 
 
 Had her title to her jointure been a /egal title, her counsel con- 
 cede that she would not be remitted; and they seem also to ad- 
 mit, as the result of the authorities, that if the case is one of 
 “equitable jointure executed,” she is not remitted; but that it is 
 such a case they strenuously deny, and plant themselves upon the 
 proposition that it is one of mere executory, dependent covenants. 
 That this is a wrong classification of the covenants, has been well 
 shown by my associates, and will be further shown hereinafter ; 
 but for my present purpose, it is sufficient that, whether the joint- 
 ure was executed or executory, the plaintiff remains barred. I 
 might, indeed, rest the case upon the learned counsel’s admission, 
 that if there be “an equitable jointure executed,” that is enough ; 
 for a clearer case of an executed trust, I humbly submit, is not to 
 be found in the books. It cannot be denied, that, both in law 
 
 and in fact, the contract was executed, so far as the plaintiff ’s per- 
 12 
 
90 
 
 sonalty was concerned, nor that a court of equity would have held 
 Mr. Ross barred of curtesy, had he survived the plaintiff; and 
 that, consequently, so far as her own estate is concerned, the case 
 presents an executed agreement. But were it otherwise, it would 
 not follow that the covenant to settle upon her a life estate in his 
 realty, is not an executed trust; for, as was said in Neves v. Scott, 
 9 How. 212, ‘in order to effectuate their intent, one part of the 
 instrument even will be taken as a complete settlement of the es- 
 tate comprised in it, and another part as mere articles.” And, in 
 truth, the plaintiffs counsel in effect admit, (Argument, p. 59,) 
 that the covenant did create an executed trust—and therefore an 
 ‘equitable jointure executed ”—by saying that: ‘The husband’s 
 covenant to devise, &c., in the ante-nuptial contract, was, in equity, 
 real estate.” 
 
 Indeed, may it please your Honor, I feel that I have bestowed 
 too much labor, and occupied too much space, in the discussion 
 of this question of executory and executed; the whole thing, so 
 far as it is material to the case, being in a nutshell. For one all- 
 sufficient fact cannot be controverted, and that is, that at the 
 time the plaintiff joined in the conveyance to Marfield and 
 others, she was seized in equity of a perfect contingent life es- 
 tate in the premises, of which she could not be deprived, except 
 by her own act. 
 
 And now let us turn to some authorities, for, although the ad- 
 missions of counsel might well relieve me from citing them, it may 
 nevertheless be profitable to do so. 
 
 And, first, as to Equitable Jointures. 
 
 In 1 Bright’s Hus. and Wife, 446, J 35, it is said: “But it 
 seems that a trust estate, being equally beneficial to the widow as 
 a legal estate, both in certainty of duration and in profit, will be 
 considered in a court of equity as a good jointure within the 
 meaning and spirit of, the statute; so that, if the woman be of 
 age at the time of the marriage, and lands are vested in trustees 
 prior to the coverture, to pay to her the rents of them for life, or a 
 rent charge out of them from the death of her husband in satis- 
 faction of her dower, that will be a good equitable jointure and 
 bar her of dower.” And it is the same, though there be no such 
 
91 
 
 conveyance to a trustee; for the husband, and whoever derives the 
 legal title from him, save innocent purchasers, is a trustee.—Sto-- 
 ry’s Eq. § 1380; 9 How. 212. 
 
 But it is not necessary that there be an executed trust to make 
 an equitable jointure. Thus, Bright, 448, 4 5: ‘The jointure 
 will be equally good and binding upon the husband and wife, and 
 bar her of dower, if it be not absolutely and completely settled 
 upon her by deed, but rest merely in covenant or articles be- 
 Sore the marriage, because a court of equity will decree a spe- 
 cific performance of such a covenant or articles, by directing a 
 settlement which will have relation to the period when it ought to 
 have been made.” 
 
 And, again, page 456, 9 5: “ According to Mr. Roper, the 
 points decided in the above case, (Drury v. Drury,) appear to be 
 as follows: 1. * * *. “2. That a covenant to make a joint- 
 ure which would be good at law if it had been actually settled, 
 will have the same effect in equity.” 
 
 Here, then, in any view of the case, was a good equitable joint- 
 ure, constituting a bar, when the conveyance was made to Mar- 
 field and others. 
 
 And now as to the effect of that conveyance. 
 
 First. It passed or barred her interest in the lots, as I have al- 
 ready shown, and as is laid down expressly in 1 Bright’s Hus. 
 and Wife, 464, 4 9, where it is said: ‘The old law allowed the 
 wife during the marriage either to pass and bar the whole interest 
 in the lands settled upon her in joiuture for her life, or to charge 
 them in favor of her husband, by concurring with him in a fine.” 
 By “old law” is here meant the law of conveyances by /ine, or 
 recovery, which has been abolished by Parliament, and a statu- 
 tory deed substituted, (2 Bright, 45, § 2; 47 § 10,) by which, as 
 in Ohio, the same thing is now effected. 
 
 And even were the contract as executory and the covenants as 
 dependent as counsel.contend, that would not avail the plaintiff; 
 for the effect of the conveyance was to release and extinguish 
 the covenant to devise. Whether she had power to release it in 
 any other mode, it is not now material to inquire—it suffices that 
 
YZ 
 
 she could release it by joining with her husband in a statutory 
 ‘conveyance of the land, and that she did so release it. This 
 proposition would seem to be sufficiently obvious ; and besides, it 
 is recognized and supported in the books. Thus, in Bright, vol. 
 1., 467, §. 16: “But the wife being disabled during the cover- 
 ture to relinquish or part with any interest in real estate, except 
 formerly by fine or recovery, and now by a statutory deed, (as 
 will hereafter be shown,) she cannot, by any act in pais, prejudice 
 or bar herself of her title to her jointure ; if, then, the jointure 
 be secured by a bond, and she cancel or deliver it up, or other- 
 wise than by the means which the law allows her to dispose of 
 real estate, attempt to release or convey her jointure in her hus- 
 band’s lands, such methods will be ineffectual for the purpose.” 
 That is, she cannot release the bond by canceling and delivering 
 it up; but she may do so by joining ina conveyance of the land 
 it covers. 
 
 Secondly. The plaintiff was not remitted to dower and dis- 
 tribution ; both which stand on the same footing, as is abundantly 
 shown by the cases cited as well as by reason. 
 
 On this point, Coke says (1 Co. Lit., 36,b., 1 Thomas Coke, 
 614, margin): “If a jointure be made to a wife of lands before 
 the coverture, and after the husband and wife alien by fine those 
 lands so conveyed for her jointure, she shall not be endowed of 
 any of the other lands of her husband. But if the jointure had 
 been made after marriage, notwithstanding the alienation by the 
 husband and wife thereof by fine, yet seeing her estate was 
 originally waivable, and the time of her election came not till 
 after the decease of her husband, she may claim her dower in the 
 residue of his lands. But in the other case, the jointure of the 
 wife made before marriage, was not waivable at all.” 
 
 I ask the particular attention of your Honor to the reason of 
 the rule here given ; for it shows conclusively that the rule rests 
 upon no distinction between legal and equitable jointures, but on 
 a principle that is equally applicable to both. In the case of 
 ante-nuptial jointure, whether legal or equitable, the widow has 
 no election between the jointure on the one hand, and dower or dis- 
 
tribution, or both, on the other. She is barred of the latter by a 
 jointure that is ‘‘ not waivable ”’—and if she part with the jointure 
 by joining with her husband in an alienation, (which is her voluntary 
 act,) there is nothing in the transaction to restore her to dower and 
 distribution. If she unite in the conveyance for a considera- 
 tion received or to be received, she is entitled to that considera- 
 tion, even if moving from her husband, and even as against his 
 creditors ; upon the same principle that a wife releasing her 
 dower for a like consideration, is similarly entitled. (7 Pick., 533; 
 3 Paige, 440). But she is entitled to nothing more; for it is 
 just as competent for her to release her jointure, without pecu- 
 niary consideration, and for mere love-and affection for her hus- 
 band, as it is for a woman to release her dower under like circum- 
 stances, which is of every day occurrence; and if she may give 
 her own estate to her husband, as in Lewis v. Baldwin, and 
 Hardy v. Van Harlingen, there is certainly no reason why she 
 may not relinquish her interest in his. 
 
 But where the jointure is wholly post-nuptial—having no con- 
 nection with any ante-nuptial agreement—the widow has an elec- 
 tion to take the jointure or dower, &c.; and it matters not whether 
 this election be made during the coverture, by joining her hus- 
 hand in an alienation of the property, or whether it be made after 
 his decease. 
 
 Your Honor will find all this substantially set forth in 1 Bright, 
 465, J. 10; and what is also deserving of notice is, that he lays 
 down the rale and the reasons for it, unqualified by any distinc- 
 tion between legal and equitable jointures, though treating of 
 both. The passage is in the same chapter, and closely following 
 and connected with the sections that treat of both kinds of join- 
 ture, and after stating the rule he notes the eases to which it has 
 no application ; but he nowhere so much as hints that equitable 
 jointures, whether executed or executory, are withdrawn from its 
 operation. 
 
 Nor will your Honor fail to observe, that the learned counsel 
 of the plaintiff, produce no case that sustains the distinction they 
 set up; although, were any such distinction recognized, it would 
 certainly be found in the multitude of jointure and dower cases 
 
Y4 
 
 in the books, and would hardly escape the vigilant eyes of coun- 
 sel so well read and diligent. J say they produce no such case ; 
 for in not one of the cases cited by them, had the wife joined in 
 an alienation of her jointure; and therefore, plainly, the cases 
 have no manner of application to the point I am considering. 
 On our part, we present abundant authority, direct to the point, 
 that where she joins in such an alienation she is not restored to 
 dower or distribution—on their part, they present none whatever. 
 
 And now, may it please your Honor, let us look, for a moment, 
 at the equity of the thing. Had the plaintiff been vested with a 
 legal title to the life estate, to which she had a perfect equitable 
 title, it is coneeded by her counsel, that the alienation to Marfield 
 and others, and the consequent failure to make the devise, would 
 not have remitted her to dower or distribution. But, as said in 
 1 Bright, supra, a trust estate was, in all respects, as beneficial to 
 her as would have been a legal estate; and I defy any man to 
 show wherein she would have been benefited, at the time of that 
 alienation, by the legal title being vested in her. What possible 
 reason, then, can be given, worth a moment’s consideration of a 
 Chancellor, why she should be remitted in the one case any more 
 than in the other? There can be none, unless the whole theory 
 of equity jurisprudence has been changed ; and instead of disre- 
 garding non-essentials and looking only at substance, it has be- 
 come the duty of a Chancellor to seize hold of figments to enable 
 parties to perpetrate frauds. Had she been seized of a legal 
 estate, even a court of law would hold her barred; but in a 
 court of equity, an equitable title is of equal validity with a legal 
 one; and, as declared by Lord Eldon and the Supreme Court of 
 the United States, supra, shall have equal effect. 
 
 Had she given to her husband the benefit of the estate, by 
 joining in the alienation without compensation, the authorities 
 unanimously declare that she would still have remained barred ; 
 but instead of this, she gets for her mere life estate over $1,500 
 more than he received for the entire fee simple. And yet she 
 claims that this alienation, which would never have taken place 
 without her assent, which could not have extinguished her estate 
 
Qh 
 
 without her concurrence, for which she agreed to receive com- 
 pensation, and is more than compensated, shall remit her to dower 
 and distribution—a claim whose iniquity no sophistry can hide, 
 and resting on a distinction without a difference, that no court 
 has ever recognized. 
 
 I repeat, then, that the plaintiff's having joined in the convey- 
 ance to Marfield and others, is decisive of this case; and that 
 whatever may be thought of the Post-Nuptial contract, the ques- 
 tion of “Separate Estate,” the doctrine of Performance, or the 
 application of Estoppel, this point, which needs none of their 
 support, is perfectly impregnable. 
 
 ~ 
 
 VII. Of Performance. Independently of the point I have 
 just considered, the failure of Mr. Ross to devise the life estate 
 in the lots, does not entitle the plaintiff to distribution ; and this 
 for several reasons, some of which I will now present, leaving 
 others to be adduced under subsequent heads. 
 
 1. Looking to the contract, it will be observed that the first 
 covenant of the plaintiff is to relinquish dower, and that, corres- 
 ponding to this, is the first covenant of Mr. Ross to devise the 
 life estate “in liew of her dower.” The remaining covenant 
 of the plaintiff is to relinquish all claim to his personalty, and 
 corresponding to this are his covenants to relinquish curtesy 
 and all claim to her personalty. The order of these covenants, 
 then, and the express declaration that the devise is ‘in lieu of 
 dower,” require an interpretation that treats the pecuniary con- 
 siderations on either side, not as an entire consideration for 
 each of the covenants on the other side, but as distinct 
 considerations; part of them going to one of the covenants 
 and part of them to the other; and, upon this interpretation, the 
 pecuniary consideration for the covenant to devise, does not em- 
 brace the plaintiff’s covenant not to claim distribution, but only 
 the covenant not to claim dower—marriage, of course, entering 
 into the consideration of each and all of the covenants. The , 
 only difficulty in the way of this interpretation, is the language 
 
96 
 
 preceding Mr. Ross’ covenants, to wit: ‘In consideration of 
 the foregoing stipulations on the part of Jane Welsh, the said 
 William Ross, on his part, hereby agrees,” &c. But this lan- 
 guage is not as explicit as the words “in lieu of dower,” and 
 does not necessarily imply that her covenants, in their entirety, 
 are the consideration for each of his; on the contrary, it is per- 
 fectly reconcilable with the interpretation for which I contend. 
 Suppose that after these words, the contract had gone on to state 
 expressly that the release of dower was the consideration of the 
 covenant to devise, (which, in fact, is the import of the words 
 ‘‘in lieu of ddwer,”) and that the release of distributior was the 
 consideration of the other covenants of Mr. Ross: there could 
 then be no doubt about the question, notwithstanding the gener- 
 ality of the expression preceding his covenants. But if the same 
 thing is fairly inferable from the whole instrument, it is just as 
 good as if it were expressed, (Broom’s Max. 442, margin,) and 
 much more stubborn language than this has been made to yield 
 to the rule, “eax antecedentibus et consequentibus fit optima 
 interpretatio.” 2 Tust. 173; Broom 442 to 456, margin. The 
 construction is not then to be governed by the strict letter of this 
 general sentence, which admits of two interpretations, and to 
 which the familiar mode of interpretation, “singula singulis,” 
 may well apply ; but your Honor will look at what precedes and 
 follows it; and if it is fairly inferable from the order of the cov- 
 enants, and the distinct and unambiguous declaration of the 
 devise being in lieu of dower, that the release of dower, and not of 
 distribution, is the pecuniary consideration for the covenant to de- 
 vise, your Honor will so hold. And in considering this question, 
 your Honor will observe that there is another rule of construction, 
 material to be noted, which would be violated by any other inter- 
 pretation than that for which I contend—namely, the rule that 
 requires effect to be given, if possible, to all the words of an 
 instrument—for upon any other interpretation that can be adopt- 
 ed, the words ‘in lieu of dower” are useless and nugatory. 
 
 If I am right, then, in the view I take of the contract, the 
 utmost effect that could result (were all other difficulties removed) 
 _ from the failure to devise, would be a restoration to dower, leav- 
 
97 
 
 ing the bar of distribution, which depends on considerations 
 actually executed, remaining intact. 
 
 It was said at bar that this interpretation would make the 
 pecuniary consideration for the release of distribution extremely 
 inadequate ; but there is no foundation for this objectlon—first, 
 because marriage is itself a sufficient consideration ; secondly, 
 because, as the books say, any provision, however small, that an 
 adult woman agrees before marriage to accept, is sufficient even 
 for a release of dower, and a ‘fortiori for a release of person- 
 alty, to which the marriage gives no title; and, lastly, because 
 the reasonableness of a marriage contract is never to be deter- 
 mined by weighing the separate considerations of separate cove- 
 nants, but .by inquiring whether, upon the whole contract, a 
 reasonable provison is made for the wife. The consideration of . 
 a particular covenant may be very small, and of another, extrav- 
 gantly large, considered per se, but neither covenant will, for 
 ' that reason, be stricken out ; the question of reasonableness not 
 
 depending on the adequacy of a particular consideration, but on 
 the aggregate of them all. - 
 
 2. If the covenant to devise does enter into the consideration 
 of the plaintiff’s covenant to renounce distribution, then that 
 consideration is three-fold, to wit: 1. Marriage; 2. Ross’ cove- 
 nants to let her own and enjoy her own property; 3. His cove- 
 nant to devise the lots. 
 
 The first two considerations have been fullly executed, and she 
 has reaped the benefit of them. The last covenant has not been 
 literally performed, but compensation, more than equivalent to 
 the value of the devise, is provided by the will, and tendered. 
 
 Under these circumstances, and independent of the validity of 
 the post-nuptial agreement, she is not remitted to dower or distri- 
 bution, but remains barred by her ante-nuptial covenants; and this 
 upon the well settled principle, that where a covenant goes to 
 but a part of the consideration, and its breach may be compensa- 
 ted in damages, (or, in the language of chancery, ‘compensation 
 may be made,”) and the residue of the consideration has been 
 paid or performed, the other party remains bound, notwithstand- 
 ing the breach. 
 
 13 
 
98 
 
 This point has been so ably presented by my associates, is so 
 reasonable in itself, and is so well fortified by authority, that I 
 should have no excuse for dwelling upon it, were it not my duty 
 to notice the cases cited by the plaintiff's counsel, and to call 
 attention to some very serious errors into which they have fallen. 
 This is rendered the more necessary by the fact, that, owing to 
 a defective statement of cases, to quotations separated from the 
 context necessary to their comprehension, and to a general appli- 
 plication of remarks that were not intended to be general, the 
 argument of the learned counsel is unintentionally made to con- 
 vey, I humbly think, a most erroneous impression of the law. 
 Under such circumstances, a prolixity, that would otherwise be 
 inexcusable, will, I trust, be pardoned ; especially as I shall seek 
 to avoid all unnecessary repetition of what my associates have 
 said; and shall ask your Honor to take their remarks and mine, 
 hot separately, but in connection, for a full presentation of our 
 views. 
 
 The rule to which I have referred, is established by numerous 
 cases, both English and American; and if there is a single case 
 in which it has ever been denied, neither our diligence, nor that of 
 our more learned adversaries, has been able to discover it. 
 
 Upon a full review of the cases, the rule is thus stated by Ser- 
 geant Williams, in his note to Pordage v. Cole, 1 Saunders’ 
 Rep. 320 6: “ Where a covenant goes only to part of the con- 
 sideration on both sides, and a breach of such covenant may be 
 paid for in damages, if is an independent covenant; and an 
 action may be maintained for a breach of the covenant, on the - 
 part of the defendant, without averring performance in the decla- 
 ration.” 
 
 The leading case on this subject is Boone v. Lyre, 1 H. Bla. 
 273, note (a); and for that reason, and because it illustrates the 
 principle with great clearness and force, and has been more fre- 
 quently cited, and with approbation, than any other case, I quote 
 the statement of it given by Sergeant Williams, in the above- 
 mentioned note in Saunders — being a briefer and clearer state- 
 ment than I could make myself: 
 
 ‘As where A. by deed conveyed to B. the equity of redemp- 
 
YY 
 tion of a plantation in the West Indies, together with the stock 
 of negroes upon it, in consideration of 500/:, and an annuity of 
 160/. for life, and covenanted that he had a good title to the 
 plantation, was lawfully possessed of the negroes, and B. should 
 quietly enjoy. And B. covenanted, that A., well and truly per- 
 forming all and everything therein contained on his part to be 
 performed, he would pay the annuity. In an action by A. against 
 B. on this covenant, the breach assigned was, the non-payment 
 of the annuity : Plea—that A. was not at the time legally pos- 
 sessed of the negroes on the plantation, and so had not a good 
 title to convey. The court of K. B., on demurrer, held the plea 
 to be ill; and added, that, if such plea were allowed, any one 
 negro, not being the property of A., would bar the action.— 
 East. 17, Geo. 3, K. B.; Boon v. Hyre, 1 H. Blac. 2'73, note (a). 
 The whole consideration of the covenant, on the part of B., the 
 purchaser, to pay the money, was the conveyance by A.., the seller, 
 to him of the equity of redemption of the plantation, and -also 
 the stock of negroes upon it. The excuse for non-payment of 
 the money was, that A. had broke his covenant as to part of the 
 consideration — namely, the stock of negroes. But as it appeared 
 that A. had conveyed the equity of redemption to B., and so had 
 in part executed his covenant, it would be unreasonable that B. 
 should keep the plantation, and yet refuse payment because A. 
 had not a good title to the negroes.” 
 
 Campbell v. Jones, 6 T. R., 570-573, is another clear case. 
 There, in consideration that the plaintiff would transfer to the de- 
 fendant a right to use a patent for bleaching, and would also in- 
 struct him in the mode of its use, the defendant paid him £250, 
 and covenanted to pay 250 more. The plaintiff having tran: - 
 ferred the right, but failed to give the instruction, brought suit 
 for the money. The defense was the non-performance of the 
 covenant to instruct. But the Court overruled it, Lord Kenyon 
 saying (after citing Boone v. Hyre with approbation): “So here 
 the covenant to teach is but part of the consideration of the 
 £500; for not doing which, the defendant may recover a recom- 
 pense in damages. And the agreement of the plaintiff having 
 been execnted in part, by transferring to the defendant a right to 
 
100 
 
 exercise his patent, he ought not to keep that right without pay- 
 ing the remainder-of the consideration, because he may have 
 sustained some damage by the plaintiffs not having instructed 
 him. For these reasons we are ali of opinion that judgment 
 must be for the plaintiff.” 
 
 In Bennet vy. The Exs. of Pixley, 7 J. R., 249, the rule was 
 applied and the case decided by it, the Court saying: ‘Assuming 
 that there was a covenant, on the part of the plaintiff, to pay for 
 the amount of the appraisement beyond the 400 dollars, yet it 
 only went to a part of the consideration ; and the rule 7s settled, 
 that where mutual covenants go only to a part of the considera- 
 tion, and a breach of that part may be paid for in damages, the 
 defendant shall not set it wp as a condition precedent. The 
 covenants in such case are to be regarded as independent.” 
 
 But it is unnecessary to go abroad for decisions upon the point; 
 for it is firmly settled by the rulings of our own Supreme Court. 
 It was recognized in Courcier et. al. v. Graham, 1 O. R. 330, 
 Judge Hitchcock observing that it was ‘ consistent with reason, 
 justice, and common sense ;” and, in 1854, the case of Tomlin- 
 son v. Trevitl, was expressly decided by its application. The 
 original action was by Trevitt against Tomlinson, on the follow- 
 ing instrument: ‘One year after date, I promise to pay William 
 Trevitt eighteen hundred dollars, with interest after six months ; 
 also to pay the balance due Perrin & Darst, of Dayton, of about 
 two hundred dollars, on a note given for goods in December, A. 
 D., 1845; in consideration of a stock of goods in the store at 
 Bryan, included in the inventory, together with the notes, ac- 
 counts, due bills, &c., included in the list, made by Jesse Green 
 and Henry Trevitt, and a release of obligation, as security to 
 said Jesse Green, at the time the payment to William Trevitt 
 is made, the claims received without recourse on account of in- 
 solvency. 
 
 “ Bryan, Oct. 2, 1847. Gites H. TomMLinson.” 
 
 The obligation from which Tomlinson was to be released, as 
 above, was for $1,800; and the release was, therefore, by no 
 means, a trifling matter. 
 
 The defense was, that Trevitt had failed to procure the release ; 
 
101 
 
 but the District Court overruled it and gave judgment for him; 
 and the Supreme Court unanimously affirmed the judgment, on 
 the express ground, that as his undertaking to procure the release 
 was but a part of the consideration, a breach of which might be 
 compensated in damages, and as the residue of the considera- 
 tion, the goods, &c., had been received by Tomlinson, the defense 
 was unaviling. Owing to the departure of the judges to their 
 circuits, the opinion in this and several other cases decided at the 
 same term, was not written out, and hence the case is not in the 
 volume of reports; but, if desired, I will furnish your Honor 
 with the arguments of counsel, and a note by the Reporter of the 
 point decided. 
 
 Our learned adversaries quote Lord Kenyon’s remark in Goodt- 
 son v. Nunn, that ‘‘the old cases cited by plaintiff’s counsel 
 have been accurately stated ; but the determinations in them out- 
 rage common sense; ” and a remark, as they say, of Lord Mans- 
 field, in Kingston v. Preston, about a defendant being obliged, 
 “in spite of his teeth,” to give personal credit to the plaintiff ; 
 and some observations of Lawrence and Le Blane, J.J., in 
 Glazebrook v. Woodrow; but they surely do not mean it to be 
 understood that these judges referred to the case of Boone v. 
 Eyre, or meant to depreciate the rule established by it. That 
 rule was established by Lord Mansfield himself and his associates, 
 who decided the case of Boone v. Hyre ; and, as we have already 
 seen, was approved by Lord Kenyon in Campbell v. Jones, 
 supra ; and surely these judges did not speak of their own de- 
 cisions as outraging common sense, or as compelling a man, in 
 spite of his teeth, to give credit to another. ‘The old cases 
 cited by plaintiff’s counsel,” referred to by Kenyon, are those 
 cited by counselor Wood, (4 'T. R., 762, 763,) and were decided 
 more than a century before Boone v. Hyre ; and as to the remark 
 attributed to Lord Mansfield, I can’t find any such thing in Kings- 
 ton v. Preston, in the report in Douglas, to which we are refer- 
 red, nor in Williams’ Abr., where the case is also reported. But 
 one thing is certain, that if he did use that language, in Kingston 
 v. Preston, he could not have alluded to Boone v. Lyre; for it 
 was not until four years afterward that the latter case was de- 
 
102 
 
 cided— Kingston v. Preston being decided in the 18th, and 
 Boonev. Eyre in the l7thyear of George III. Besides, Kingston v 
 Preston in no wise involved the rule in question, and no reference 
 whatever was made to it in that case. That was an action by a 
 vendee against a vendor, on a credit sale of the good will and 
 stock of a mercer ; the vendee covenanting, at or before delivery, 
 to ‘cause and procure good and sufficient security to be given” 
 for the purchase money. The plaintiff avered a readiness, at the 
 proper date, to perform ; and assigned non-delivery by the ven- 
 dor as a breach of the covenant to deliver. Plea—That the 
 plaintiff did not offer or give sufficient security. Demurrer to 
 plea. For the plaintiff, it was contended that he was entitled to 
 the delivery without giving security at all; a construction so re- 
 pugnant to both the language and sense of the agreement, that 
 Lord Mansfield might well have characterized it as a proposition 
 “that the defendant, in spite of his teeth, shall be obliged to give 
 personal credit to the plaintiff”—and if he did use that language, 
 it was probably in that way. 
 
 The modern cases, on the subject of dependent and indepen- 
 dent covenants, beginning with Kingston v. Preston, are perfectly 
 harmonious in the principles they enunciate, whatever errors may 
 have occurred in the application of the principles. They clearly 
 establish the following propositions : 
 
 1. That where a covenant is to do a single thing, (ex. gra. to 
 pay $1,000,) and it constitutes the entire consideration for the 
 covenant of the other party, and it is to be performed at or be- 
 fore the time when the other party is to perform, its performance 
 is deemed to be a condition precedent, unless there is something 
 in the contract to show that it was not so intended—and this upon 
 the presumption that the parties so designed. Hence, in the ab- 
 sence of any valid excuse for non-performance, such a covenant 
 must be fully performed, or the other party will not be required 
 to perform. 
 
 2. But where the covenant is to do two or more things, or 
 there are separate covenants to do separate things—which, taken 
 altogether, form the consideration for the covenant of the other 
 
105 
 
 party—and they are of that nature that a breach of them can be 
 compensated in damages, they are deemed to be independent 
 covenants, unless it clearly appears that such was not the inten- 
 tion of the parties. Hence, in this class of cases, although there 
 has not been full performance, yet if there has heen part per- 
 formance in a substantial particular, the other party will be re- 
 quired to perform. This is the rule a¢ Jaw, even where there has 
 been no tender of compensation; the party required to perform 
 being left to his cross action to recover his damages. 
 
 3. But a court of equity, having a larger discretion in decree- 
 ing a specific performance, will, in general, require compensation 
 to be made as a condition of such a decree; and hence, where, 
 owing to the insolvency of the defaulting party or other cause, 
 compensation cannot be made, the other party will not be required 
 to perform. 
 
 4. Marriage contracts, however, are, in some respects, excep- 
 tions to the rule requiring performance or compensation, and a 
 party to them will often be decreed to perform, regardless of the 
 other party’s default, or the want of compensation. 
 
 These principles are established by the authorities already re- 
 ferred to, and others that will be cited; and, bearing them in mind, 
 it will not be difficult to show that not a single case cited by our 
 learned adversaries, iu the least militates against them, or is incon- 
 sistent with the proposition for which I am contending. With as 
 much brevity as possible, and relying mainly on your Honor’s ex- 
 amination, I will now refer to the cases and endeavor to make 
 good this assertion. 
 
 Kingston v. Preston, Goodison v. Nunn, and Glazebrook v. 
 Woodrow, were not marriage contract cases; and as to the first 
 named, I have said all that is necessary. 
 
 Goodison v. Nunn, was an action for a penalty, and the case 
 is thus stated in Lord Kenyon’s opinion: “The plaintiff engaged 
 to sell an estate to the defendant, in consideration of which the 
 defendant undertook to pay £210; and if he did not carry the 
 contract into execution, he was to pay £21. And now, not hav- 
 
~ 104 
 
 ing conveyed his estate, or offered to do so, or taken any one step 
 towards it, the plaintiff has brought this action for the penalty.” 
 
 Here was no covenant going to a part only of the considera- 
 tion, nor any part performance, for each of which reasons the 
 case is not in point. 
 
 In Glazebrook v. Woodrow, there had heen a part perform- 
 ance, but it was in an immaterial particular of scarcely any value, 
 perhaps none. ‘The very substance of the consideration,” to use 
 Lord Kenyon’s language, ‘the material part,” as Le Blane, J., 
 said, remained unperformed; and, looking at the terms of the 
 agreement, it was unreasonable to suppose that the parties intend- 
 ed their covenants to be independent. 
 
 But how different is this case? Here, the principal considera- 
 tion, as the books justly call it, the marriage, was executed, 
 and from it there resulted to the plaintiff the valuable pecuniary 
 advantage of ten years’ support, (to say nothing of the rents and 
 the rebuilding of her house.) In addition to this is the executed 
 covenant in respect to her personalty, which, but for the contract, 
 would have been her husband’s, and which, with its increase, ex- 
 ceeds $7,600. So, here, looking at nothing but monetary re- 
 sults, it is evident that much the greater part of the pecuniary 
 consideration has been paid; and full compensation is tendered for 
 the residue. 
 
 And as to the intention of the parties, there is not a word in 
 the contract to show that they meant their covenants to be in any- 
 wise dependent, nor was there the least necessity for their being 
 so. In Boone v. Eyre, ‘‘the defendant covenanted that, the 
 plaintiff performing all and everything therein contained on 
 his part to be performed, he, the defendant, would pay the an- 
 nuity,” and yet these words, so strongly importing that full per- 
 formance was a condition precedent, were held to be insufficient 
 to rebut the presumption arising from the fact that the annuity 
 was but a part of the consideration. But there are no such words, 
 
 or anything like them, in the present case. The plaintiff’s cove- 
 
 nants stand wholly disconnected from any statement of consid- 
 eratior, except that of marriage and the desire of the parties re- 
 spectively to control their respective estates recited in the pream- 
 ble. The purpose to marry, and the desire to withdraw their prop- 
 
105 
 
 - 
 
 erty from the operation of marital law, being stated, the plain- 
 tiff proceeds, at once, to covenant; without one word, in any part 
 of the agreement, implying an intention that the performance of 
 her covenants should be dependent on the performance of her 
 husband’s. 
 
 Nor was there, as I have said, the least necessity for making 
 them so. For as to Mr. Ross’ covenants, in respect to her 
 property, they would operate per se, and needed no guaranty 
 for their faithful execution; to say nothing of her confidence that 
 he would faithfully observe them, or of the fact that his estate 
 was amply sufficient to compensate for their breach. Then, as to 
 his covenant to devise her the lots, that also needed no guaranty ; 
 for the covenant itself, the moment the marriage took place, gave 
 her an equitable estate as beneficial as a legal one; of which she 
 could not be deprived, save by her own free act, and by virtue of 
 which, if she saw fit to retain it, she could, at any time after 
 Mr. Ross’ death, call in the legal title if she desired it. She 
 had nothing whatever, then, to gain by making the covenants de- 
 pendent, nor anything to lose by their being independent; and 
 there not being a word in the instrument implying dependency, 
 and the case falling directly within the rule that covenants going 
 to a part only of the consideration are deemed independent, there 
 is not even a shadow of a ground to say that the parties meant 
 them to be dependent. Parties are presumed to contract with 
 a knowledge of the law—a presumption that cannot be rebutted 
 except in cases of fraud, and which there is nothing in this case 
 to rebut, even were it allowable to do so—and thus con- 
 tracting, to suppose that these parties intended, that after Mr. 
 Ross had fully executed his covenants in respect to her property, 
 and she had thereby retained the complete ownership of that, 
 she should become entitled to his property too, for want of a 
 devise that would confer no advantage, that would only clothe her 
 equitable with the figment of a legal title, without rendering it 
 one whit more beneficial, would be to suppose that these people 
 were fitter subjects for a lunatic asylum than for the responsible 
 estate of matrimony into which they were entering. 
 
 Hastings vy. Dickinson, Gibson v. Gibson, (7 and 15 Mass.,) 
 
 4 
 
106 
 
 and Vance v. Vance, (8 Shepley,) were all cases at law, and 
 were not decided, as counsel suppose, on equitable principles ; 
 nor did the facts bring them within the rule I am considering. 
 
 In Hastings v. Dickinson, the stipulated provision for the 
 widow was an annuity. It was the whole consideration for her 
 covenant not to claim dower, and it wholly failed; her husband 
 dying insolvent. So the effect of part performance, and of the 
 breach of a covenant going to a part only of the consideration, 
 was not involved in the case, and not one word is said about it. 
 
 Gibson v. Gibson, was a like case—a covenant to pay an an- 
 nuity being the whole consideration for the woman’s covenant, 
 and there being no averment of performance, either full or 
 partial. Of course the case is not in point, but there are some 
 dicta of the Judge who delivered the opinion, that, perhaps, 
 should be noticed. He said: ‘But, although we cannot con- 
 sider the covenants in this case as extinguished, yet, if the con- 
 sideration has failed, in whole or in part, they cannot operate to 
 rebut the demandant’s right of dower.” Now, there was no 
 question before the court as to the effect of a partial failure of con- 
 sideration, and could not be; for the case stood on a demurrer to 
 a plea which averred no performance whatever. The covenant of 
 the plaintiff contained a stipulation that it should be pleadable 
 in bar of her dower; and so the defendants went upon the ground 
 that, although the annuity might be wholly unpaid, and there 
 might be nothing to pay it with, yet she was barred. It is 
 therefore,manifest, that what the Judge said about a part failure 
 of consideration was a mere obiter dictum. But it is unneces- 
 sary for me to dissent from it, for the covenant of the husband 
 that formed the consideration for the wife’s covenant, was the 
 whole consideration of the latter; and the case, therefore, does 
 not come within the principle I am discussing. It is to be ob- 
 served, however, that further along in the opinion, the Judge 
 seems to require something more than a failure of payment, and | 
 to be in doubt as to the effect of a failure of consideration, for 
 he says: “If the annuity has not been paid, and the security 
 has failed, the demandant’s covenants cannot be set up to 
 rebut her claim of dower; because there is a saving clause in the 
 
_———s 
 
 107 
 
 indenture, by which she excepts her right to the annuity from the 
 effect and operations of her covenants, which was probably in- 
 tended to operate as a charge upon the real estate in the event 
 
 - of such failure. But if there had been no such exception, yet, 
 
 if the consideration has failed, her covenants cannot operate as 
 an estoppel or rebutter ; for either they do not bind at all, ov, at 
 most, she would be liable only, in an action of covenant, for 
 the difference between the value of the dower and the annuity. 
 Confining ourselves to the present plea, we cannot determine how 
 these facts are. The tenants have not averred performance of 
 the covenants of their ancesto®on their part; and, according to 
 the rules of pleading, such an averment would have been im- 
 proper in a plea of estoppel. In their other plea, the tenants 
 will have the benefit of investigating these facts, if they should 
 operate in their favor; as to which we cannot now form an 
 opinion. But the second plea [that- demurred to] is clearly 
 insufficient.” 
 
 So, after all, the whole opinion ends in this, that the bare cov- 
 enant of the woman, with no performance whatever, past, present 
 or prospective, (for that had to be assumed, in order to raise the 
 question, whether the covenant, per se, was a bar,) could not be 
 set up by way of rebutter at law; but whether, even in that case, 
 if she should recover dower, the tenants would not be entitled to 
 recover back any excess of value it might have above the value 
 of the annuity, the court did not know. 
 
 If there could be such a cross recovery, where there was a fotal 
 failue of consideration, I need not ask what would be the present 
 plaintiff’s situation could she recover; nor whether a court of 
 equity would promote circuity of action by letting her recover, 
 and then compelling her to pay the difference back, so as to give 
 her, at the end of two suits, just what the will gave her before 
 the commencement of either. In other words, if, in a case where 
 the husband has wholly failed to perform, and no compensation 
 is tendered, the widow is not beneficially remitted to dower and 
 distribution, but must ultimately receive the value of the ante- 
 nuptial provision, and no more, it is too manifest for argument, 
 that, in a case like the present, she has no title, whatever, to any 
 greater relief. 
 
108 
 
 Vance v. Vance is disposed of by the fact, that there was no 
 question about performance in it. The husband performed fully. 
 The court say expressly: ‘ In this case, there is no failure of con- 
 sideration.” The case was at law, and that created the whole 
 difficulty. It is all in these words of the court: “ The covenants 
 cannot, therefore, at law, be pleaded as a release.” A clearer 
 case of a bar in equity cannot well be imagined. It is deserving 
 of notice, however, that the court refer, with apparent approba- 
 tion, to the suggestion in Gibson v. Gibson, tbat if the widow 
 recover she may be compelled to pay back ; thus reducing her at 
 last, in effect, to the value of the @nte-nuptial provision. 
 
 The passage cited by counsel from Greenleaf’s Cruise, is merely 
 a statement of what he understood to be decided by these Massa- 
 chusetts and Maine cases, and has no application beyond them. 
 He refers to them as his authority; and, of course, what he says 
 was not intended to, and could not if it were intended, go beyond 
 them. It, therefore, relates simply to cases at law, and of the 
 character of those named. 
 
 Johnson v Johnson’s Adm., 23 Missouri Rep. 561, was a case 
 of unmitigated fraud and total failure of performance; a case in 
 which the marriage articles were concocted by the husband, (as 
 may fairly be inferred,) as they certainly were used by him for no 
 other purpose than to protect his own estate from any claims of 
 his wife, while he plundered her estate to enrich himself and his 
 relations. By the articles, it was agreed that “their separate 
 property should, during their joint lives, form a fund, from the 
 income of which they and their issue, if any, should be supported 
 and maintained ;” and that ‘for the purpose of producing such 
 income, said Johnson should have the management of said sepa- 
 rate property of the plaintiff; ” but the proceeds of the property, 
 with the unexhausted income arising therefrom, should ultimately 
 be hers. Her own property, therefore, was not settled upon her 
 in specie, by the creation of an executed trust, so as to deprive 
 her husband, without her concurrence, of any power to incumber 
 or dispose of it; but it was made the subject of a mere execu- 
 tory trust, of which he was to be the trustee, with a power of 
 disposition and a liability to account; the faithful execution of 
 
109 
 
 which by him would constitute the sole pecuniary consideration 
 for her relinquishment of dower and distribution. And so it was 
 considered by the court, as your Honor will see by the quotation 
 made by our opponents, and yet more clearly by looking at the 
 ease. And, now, how did he administer this fund, and keep and 
 perform the obligations into which he had entered? Why, may 
 it please your Honor, he neither kept or performed a single cove- 
 nant he had made; and, from the outset to the end, his only ad- 
 ministration of the fund was for purposes of spoliation. 
 
 The suit was for dower, and the petition directly charged that 
 “The said Johnson did never keep or perform the said marriage 
 articles on his part, but violated and broke the same in every 
 part and parcel thereof, and did conduct himself in fraud and 
 bad faith towards her in that behalf, as follows: Said Johnson 
 did merely use and employ the said articles of agreement for 
 the purpose of getting into his possession the property of the 
 plaintiff, and did afterwards refuse, fail and neglect to comply 
 with the said articles of agreement in every thing mentioned 
 therein for the benefit of the plaintiff.” Then followed speci- 
 fic and circumstantial charges of fraud, default and breach of 
 trust, by which she was deprived, during the coverture, of a 
 proper support ; her ample property converted, in a great meas- 
 ure, to her husband’s use and that of his relatives; and she finally 
 left, at the age of sixty, “not only without any means of living, 
 but without any resource save to apply to the court for her rights.” 
 All these charges, and more, being admitted by the defendants — 
 the petition being demurred to and not answered — well might 
 the court deny “that this unfulfilled agreement, under the cir- 
 cumstances stated in the petition, constitutes, of itself, without 
 anything further, a bar of the wife’s dower in favor of mere vol- 
 unteers.” An agreement creating no executed trust, but resting 
 wholly in covenant; that provided nothing for the wife out of 
 the husband’s estate, and failed to protect her in the enjoyment of 
 her own; that had not been executed in whole or in part, but had 
 simply been employed to rob her of what she had; that left her 
 at sixty without means of support, though she owned at her mar- 
 riage an ample estate !—to suppose such a case as that analo- 
 
110 
 
 gous to the present; or, to use language applied to it, to its very 
 opposite, is to ignore all distinction between right and wrong, and 
 confound beneficial performance with no performance at all. 
 
 It is admitted by the learned counsel, that if this is a case of 
 an “executed equitable jointure,” the case of Power v. Sheil, 
 (1 Molloy, 296; 12 Eng. Chy., 147,) is a direct authority in our 
 favor; but they say that that is “‘a ragged case,” “an Irish blun- 
 der,’’ has been overruled, and is not analogous. I concede that 
 this ragged Irishman—to use the nomenclature of counsel—con- 
 tains some very bad law, which was contemptuously spoken of 
 and overruled in Dyke v. Rendall, (13 Eng. Chy., 404;) but it 
 happens, unfortunately for my learned friends, that this scorned 
 and overruled Jaw makes in their favor, and that what was not 
 scorned and overruled makes in ours. It had been settled in Eng- 
 land, by repeated decisions, that an adult woman might bar her- 
 self of dower by her agreement, before marriage, to accept any 
 provision, however small or precarious; and that a court of equity 
 would enforce the agreement on the footing of contract, indepen- 
 dent of analogy to statutory jointure. But, in Power v. Shiel, 
 Sir Anthony Hart dissented from this doctrine, and, in his sym- 
 pathy for the sex, required ‘a solid provision for the widow,” 
 (thns transcending the requirements of the Jointure Act itself, 
 which only demands that the jointure shall not be illusory ;) and, 
 in defiance of authority and obiter loquens, he also said: “I put 
 the case of a contract agreed to by an adult female before mar- 
 riage, to the effect that the wife never will claim dower, and I 
 asked what a court of equity would do with such a contract as 
 that? Undoubtedly it would say that it only enforces contracts 
 which may be legally entered into, but are deficient in legal form. 
 Now, such a contract as that, the law does not tolerate in any 
 shape.” 
 
 It was this dictum of Sir Anthony —which, if if were law, 
 would be conclusive for the plaintiff— that was treated by the 
 Chancellor, in Dyke v. Rendall, “with something short of re- 
 spect,” to use my learned friends’ language. He said: “I have 
 looked at Sir A. Hart’s decision in Power v. Sheil. I have my- 
 self no doubt that an adult lady may bar herself of her dower on 
 
Te 
 
 any terms, or make any condition she pleases. I cannot say that 
 I understand the observation of Sir A. Hart in that case, p. 311. 
 (Here he quoted the language of Sir Anthony, which I have just 
 quoted, and then proceeded as follows:) ‘I do not understand 
 that, for I think she may do a very wise thing by enabling her 
 husband to deal with his estates. I have no doubt of such a right, 
 where the female is an adult.” 
 
 Now the above dictum of Sir Anthony is all that Dyke v. Ren- 
 dall professes to overrule ; and hence the statement of the sylla- 
 bus is: ‘“ Dictum of Sir A. Hart, in Power v. Sheil, 1 Mol., 
 311, overruled.” 
 
 But I admit that the English Chancellor would not have ren- 
 dered the decree that was rendered by his Irish brother—Dyke v. 
 Rendall plainly shows that—but then it remains to inquire what 
 decree he would have rendered. If he would have given Mrs. 
 Sheil full dower, instead of the amount of the ante-nuptial pro- 
 vision, given her by Sir A. Hart, then Power v. Sheil is over- 
 tuled to our disadvantage; but if he would have given her 
 nothing, neither dower or compensation, then the overruling zs in 
 our favor; and is stronger doctrine by far than we are in need 
 of. Now, this latter is precisely what he would have done, for it 
 is just what he did do in Dyke v. Rendall; which case was this: 
 T. W. Dyke and Elizabeth Skinner, adults, intending marriage, 
 articles were entered into, containing, first, a recital of intention 
 to provide ‘‘a competent jointure and provision” for her, should 
 she survive her husband, and for the issue of the marriage; next, 
 certain covenants of the fathers of the parties, not material to be 
 noticed, as they were not for her benefit, but for that of the hus- 
 band and issue; lastly, a covenant of T. W. Dyke to give a bond 
 to certain trustees, in the penal sum of £4,000, conditioned for the 
 payment of £2,000, with interest at 5 per cent. per annum, within 
 six months after the marriage, to be held upon trust for him for 
 life; and after his death, “upon trust to pay and apply the inter- 
 est and profits of the said sum of £2,000 unto the said Elizabeth 
 Skinner” for her life; and thereafter upon trust for the issue of 
 the marriage. He accordingly gave the bond, but all he ever paid 
 on it was £484 18s.; and after his death his widow claimed dow- 
 
112 
 
 er. On the hearing of the case before the Vice Chancellor, Sir 
 J. L. Knight Bruce, ‘his Honor declared that the plaintiff was 
 entitled in respect of her dower to one third of the rents and pro- 
 fits of the Bulford estate, not exceeding for such one third of 
 the said rents and profits £60 12s. per annum, being the in- 
 terest at 4 per cent. per annum, which would have accrued 
 due to her on the sum of £1,515 2s., the portion of the bond 
 remaining unpaid.” But, on appeal, the Lord Chancellor held 
 that she was entitled to neither dower, or a lien for the interest, 
 and therefore dismissed her bill; but, inasmuch as Power v. Sheil 
 might have misled her into the belief that she was so entitled, he 
 dismissed it without costs. 
 
 Now here was a case in which the sole provision for the widow 
 —the only pecuniary consideration for which she released dower— 
 was the interest in the £2,000; more than three fourths of which 
 interest she was utterly deprived of, by her husband’s failure to 
 pay the money, unless she was remitted to dower or was entitled 
 to a lien on the land; and yet she was refused cither. And it 
 will not escape observation, that neither the learned Vice Chan- 
 cellor, who sympathized in her misfortune, nor Sir A. Hart, a’ 
 very champion of the sex, was willing to hold that a default of 
 performance involves a restoration to dower; but, on the contra- 
 ry, they did hold ‘that the ante-nuptial provision afforded the 
 proper measure of relief—a doctrine in nowise censured by the 
 Lord Chancellor, if relief could be afforded. and which he would 
 doubtless have applied himself had he decreed in favor of the 
 plaintiff. My learned friends are therefore mistaken when they 
 say, that he ‘overruled the point in Power v. Sheil, and laid 
 down the rule in chancery as directly opposed to it,” if, by this, 
 they mean that he upheld their doctrine of restoration to dower 
 * in opposition to the doctrine of compensation. He overruled the 
 point, it is true, but not to give dower; he laid down the rule as 
 opposed to it, but his rule gives nothing. 
 
 But what did he mean by the remark, “ Of course this has 
 nothing to do with the performance of the covenant of the hus- 
 band to give the bond; he must, of couse, perform it if he de- 
 sires to keep the estates free from dower; he must do the act 
 
115 
 
 contracted for; that depends upon the common doctrine of this 
 court” ? 
 
 That he did not mean that the money must be paid, is very 
 apparent from his decision ; for he refused dower notwithstand- 
 ing the default of payment; and the whole scope and reasoning 
 of his opinion went to show that payment was not necessary to the 
 existence of the bar ; besides which, his languagejust quoted is, not 
 that the husband must pay, but that he must “give the bond.” 
 
 What, then, did he mean? Why, nothing more than this, that 
 an unperformed mere personal and executory covenant, that 
 creates no executed trust, gives no title, legal or equitable, to 
 any specific thing—as, for instance, a covenant to give a mere 
 money bond—is not sufficient “to keep the estates free from 
 dower.” But this has nothing to do with a case where the cove- 
 nant creates an executed trust, vesting in the covenantee a per- 
 fect equitable title to a particular thing; and where the maxim 
 of equity can have full application, that that which ought to be 
 done shall be deemed to be done. There is not a sentence, or 
 a word, in the Chancellor’s opinion, that applies his remark to a 
 case like the present ; nor can it be thus applied without contra- 
 vening rules that he never meant to disregard. Besides, there is 
 something of swbstance, in England, in holding that where the 
 agreement is to give a mere money bond, the bond must be given ; 
 for it affords a seturity for payment that might not otherwise ex- 
 ist, since it has a priority of payment out of a decedent’s ef- 
 fects, and is a lien on his realty where a simple agreement is not. 
 (2 Williams’ on Exs., 867, 1484). And the wife has need of 
 this security, for she runs the risk of non-payment; remaining 
 barred of her dower though no payment be made. But, here, 
 the plaintiff ran no risk at all, and needed no assurance beyond 
 what she had—her life estate being vested in her and under her 
 control. 
 
 It will also be observed, that the Chancellor’s remark was 
 casual and ‘by the way ;” and remarks of that character can 
 seldom be regarded as cautious expositions. That it was a mere 
 obiter is shown by the fact, that, in the case under consideration, 
 the husband had given the bond. 
 
 15 
 
114 
 
 . 
 
 It is further to be noted that each of these cases—Power v. 
 Sheil and Dyke v. Rendall—go beyond what we require; for 
 in each of them, the promised annuity, or income, was the sole 
 provision for the wife; and the covenant of the husband, there- 
 fore, the only pecuniary consideration for the release of dower; 
 from which it results, that had dower been decreed in those cases, 
 the rule of Boone v. Eyre would not have been infringed, nor the 
 present case affected. We would still stand on the ground that 
 our covenant to devise went to but a part of the consideration. 
 But dower was not decreed, and the cases are, therefore, a for- 
 tiort authorities for us. 
 
 Bliss v. Sheldon, 7 Barb., 154, 4 Seld., 87, is the only case 
 remaining, of those cited by plaintiff’s counsel, on the question 
 of performance. It has been well disposed of by my brethren, 
 Hunter & Daugherty, (Argument, 69-70 ;) but as so much re- 
 liance is placed on it, I will be pardoned, I trust, for noticing it 
 further. In the first place, I admit that the case was correctly de- 
 cided; but, in the second place, I affirm, that in no one essential 
 feature is it analogous to this case; and that it isa mere misuse of 
 precedent to apply a judge’s language in respect to a case like 
 that, to a case as wholly different and dissimilar as is the present 
 case. It is impossible for a judge, without writing a treatise on. 
 the law instead of a mere decision of a case, to so hedge about 
 his language that it shall not be capable of misapplication ; and, 
 hence, the fundamental rule, in all intelligent courts, that the lan- 
 guage of the judge is limited to the facts of the case, unless a 
 contrary intent is manifestly apparent. And even where there is 
 such an intent, and the purpose of the judge to make a broader 
 application of what he says is quite undeniable, just in so far as 
 he makes that broader application, just that far does his opinion - 
 lose the force of authority and become a mere dictum. There 
 is no reason, however, why we should suppose that the judges 
 who decided Bliss v. Sheldon, intended any such thing; and, 
 therefore, upon the well settled principles that govern the con- 
 sideration of precedents, the language they used is to be limited 
 to that case. 
 
 And now, may it please your Honor, let us mark the difference 
 in the cases, 
 
=" 
 
 115 
 
 (1) The first thing to be observed is, that the Court inferred, 
 from the agreement, that performance by the husband was in- 
 tended by the parties to be a condition precedent ; and they, 
 therefore, so construed it. This construction was given—not by 
 holding that a husband’s performance is always such a condition, 
 for that would have been absurdly erroneous—but by a considera- 
 tion of the terms of the particular instrument. The husband’s 
 covenants were wholly executory, and no benefit was to, or could, 
 accrue from them during the coverture. Even the wife’s furni- 
 ture that she brought, was to become his property, for it was one 
 of the things that he covenanted to bequeath. The real estate to 
 be devised was not so designated as to create an executed trust; 
 and, consequently, the wife would not be seized of an equitable 
 estate. No particular rooms or garden spot were embraced by 
 the covenant; but, on the contrary, a devise of any square room 
 and bed room adjoining, in the south part of the house, and of 
 any garden spot wherever situate on the premises, would be per- 
 formance. The annuity to be paid, was to begin with his death, 
 and this, together with the above mentioned matters, formed the 
 whole pecuniary consideration of her release. And so, there 
 could be no part performance during the coverture, and the man 
 would go to his grave as rich, and the widow remain as poor, as 
 though no contract had ever been made. Well might the Court 
 presume, in view of such an instrument, that the parties intended 
 performance to be a condition precedent. But how different the 
 instrument from the contract before us, and how different the re- 
 sults! There, justice required that performance should be a pre- 
 cedent condition ; here, justice is endangered if the covenants are 
 not deemed independent. ‘There, the whole benefit of the con- 
 tract to the woman depended upon performance; here, a devise 
 of the lots would have conferred no benefit upon her. There, 
 she could get nothing at all if the will were not made; here, she 
 would get everything that was beneficial without the aid of a 
 will. ‘There, it would have been irrational to suppose that indc- 
 pendent covenants were meant; here, it would be almost absurd 
 to suppose that they were not. (See ante., p. 104, et seq.) 
 
 (2) In that case, the question was on setting up an unperform- 
 
116 
 
 ed executory contract; in this case, it is on setting aside a bene- 
 ficiaily executed trust. | 
 
 (3) In that case, there was no performance at all, and no power 
 to make compensation, (there being no provision in the will ena- 
 bling the executors to do so;) in this case, the most valuable part 
 of the covenants has been performed, and ample compensation 
 for the unperformed is provided by the will. 
 
 (4) In that case, “the husband, in his lifetime, virtually repu- 
 diated” the agreement, (4 Seld. 36;) in this case, he performed, 
 during life, what he was bound to perform, and beneficially exe- 
 cuted when dying what he was then bound to do. 
 
 The only authority referred to by the Supreme Court of New 
 York, was Clancy, 103; and what a blunder that was, has been 
 pointed out by my associates; the only citation of the Court of 
 Appeals was Greenleaf’s Cruise, already noticed, and how far 
 
 that is from supporting the now plaintiff, I trust I have sufficient- 
 ly shown. 
 
 I have thus, may it please your Honor, reviewed all the author- 
 ities on the question of performance produced by my learned ad- 
 versaries, and, I humbly submit, that not one of them supports, 
 or tends to support, their case; and that, on the contrary, some 
 of them are quite decisive against it. 
 
 3. I will now ask attention to a few more authorities on our 
 side, which show that equity goes farther than the law in enforcing 
 the performance of contracts, and especially marriage agreements ; 
 and will, even in the case of dependent covenants, decree in favor 
 of a defaulting party, if it is conscientious to do so; and where, 
 owing to a change of circumstances, a strict performance is im- 
 possible, will decree performance cy pres, or direct compensation 
 to be made. 
 
 In Davis v. Hone, 2 Sch. and Lef. 347, Lord Chancellor 
 Redesdale said: ‘ A court of equity frequently decrees specific 
 performance, where the action at law has been lost by the very 
 default. of the party seeking the specific performance, if it be, . 
 notwithstanding, conscientious that the agreement should be per- 
 
lie - 
 
 117 
 
 formed, as in cases where the terms of the agreement have not 
 been strictly performed on the part of the person seeking specific 
 performance ; and, to sustain an action at law, performance must 
 be averred according to the very terms of the contract.” 
 
 And again: ‘ But because the plaintiffs ought not to have the 
 covenant performed literally, they are not to lose their prop- 
 erty entirely. This court will execute the covenant, according to 
 a conscientious modification of it, to do justice as far as cir- 
 cumstances will permit. It has happened, by lapse of time and 
 change of circumstances, that it would be harsh and unjust to re- 
 quire execution of the covenant specifically in the very terms; 
 but it is the advantage of a court of equity that it can modify the 
 
 demands of parties according to justice.” 
 
 And thus says Story, 2 Com. on Eq., see. 771: ‘‘In general, 
 it may be stated, that to entitle a party to a specific performance, 
 he must show that he has been in no default in not having per- 
 formed the agreement, and that he has taken all proper steps 
 towards the performance on his own part. If he has been guilty 
 of gross laches, or if he applies for relief, after a long lapse of 
 time, unexplained by equitable circumstances, his bill will be dis- 
 missed ; for courts of equity do not, any more than courts of law, 
 administer relief to the gross negligence of suitors. But this doc- 
 trine is to be taken, (as we shall presently see) with some qualifi- 
 cations. For, although courts of equity will not encourage 
 laches, yet, if there has not been a strict legal compliance with the 
 terms of the contract, and the non-compliance does not go to the 
 essence of the contract, relief will be granted.” 
 
 And again, sec. 772: ‘A distinction has been put upon this 
 subject by Lord Chief Baron Gilbert, which is entitled to consid- 
 eration, because it apparently reconciles authorities, which might 
 otherwise seem discordant. It is the distinction between cases 
 in which the plaintiff is 7m statu quo as to all that part of his 
 agreement which he has performed, and those cases in which 
 he is not in statu quo. In the former cases, equity will not en- 
 force the agreement, if the plaintiff cannot completely perform 
 the whole of his part of it; in the latter cases, equity will en- 
 
 force it, notwithstanding he is incapaple of performing the 
 
 remainder by a subsequent accident,” 
 
118 
 
 And again, sec. 775: ‘‘ Where the terms of an agreement have 
 not been strictly complied with, or are incapable of being strictly 
 complied with ; still, if there has not been gross negligence in 
 the party, and it is conscientious that the agreement should be 
 performed ; and if compensation may be made for any injury 
 occasioned by the non-compliance with the strict terms; in all 
 such cases, courts of equity will interfere, and decree a specific 
 performance. For the doctrine of courts of equity is, not for- 
 feiture, but compensation ; and nothing but such a decree will, 
 in such cases, do entire justice between the parties. Indeed, in 
 some cases, courts of equity will decree a specific execution, not 
 according to the letter of the contract, if that will be unconsci- 
 entious, but they will modify tt according to the change of cir- 
 cumstances.” 
 
 In Harvey v. Ashley, 8 Atk. 610, Lord Hardwicke said : 
 “There is a difference between agreements on marriage being 
 carried into execution, and other agreements ; for all agreements 
 besides are considered as entire, and if either of the parties fail 
 in performance of the agreement in part, it cannot be decreed in 
 specie, but must be left to an action at law: in marriage agree- 
 ments tt is otherwise; for though either the relations of the 
 husband or wife should fail in the performance of their part, 
 yet the children may compel a performance.” 
 
 So in Bowie’s Hars., v. Bowie, 1 Md. Rep. 100, it was ruled : 
 “A failure to comply by one party to a marriage contract, does 
 not release the other after the marriage has been consummated. 
 Such a contract is not similar to those of an ordinary character. 
 Rights are secured to the husband and wife, and to the issue of 
 the marriage, which entitle them to compel a compliance by either 
 party.” 
 
 In the matter of Heald’s Petition, 2 Foster (N. H.), 265, the 
 case was, that, by an ante-nuptial contract, the intended husband 
 agreed to relinquish all claim to the property of the intended 
 wife, and she agreed to relinquish all claim to his. In speaking 
 of what would have been the effect of a breach of his cove- 
 nant by a misuse of his Jegal rights, and what would be proper 
 in such a case, the cout said: “There seems to be no reason 
 
, 
 | 
 
 mee) 
 
 why he might not, after the marriage, in the exercise of his mar- 
 ital rights, reduce her personal property to his possession, and 
 appropriate it to other purposes than those for which it was in- 
 tended by the agreement it should be used. If he might do this, 
 his wife would have no remedy during the existence of the mar- 
 riage. But in such case, it would seem proper and equitable that 
 she should be compensated out of his estate for the property 
 which, by the agreement, was to be kept separate therefrom.” 
 
 And in Gould v. Womack, the Alabama case so prominently 
 cited by plaintiff’s counsel, the court said: “In those countries 
 where the widow is authorized to bar her dower at law by an 
 ante-nuptial contract, courts of chancery, which look at the sub- 
 stance of things, and disregard form, will decree a specific per- 
 formance, in cases where the provision is inadequate, if it does 
 not ENTIRELY fail, because such was the intention of the par- 
 ties.” 
 
 Counsel put an extreme, impossible and non-analogous case, 
 on page 46 of their argument, beginning as follows: ‘“ Suppose 
 Mr. Hunter to have bought his house and grounds of a married 
 man, and taken a deed, in which the wife did nut join; and after- 
 wards Mr. Ewing takes a deed of the husband and wife for the 
 same property; E then has a contingent estate of dower in the 
 premises.” 
 
 With submission be it said, E. has no such thing, nor anything 
 else in the premises. Dower, before assignment, is, for most pur- 
 poses, a mere right of action ; and though it is, in fact, an inter- 
 est in the land, yet it is not an estate, and is not transferable. 
 It may be extinguished, but it cannot be conveyed; in which 
 respect it differs from every other interest in land. (Park on 
 Dower, chap. 16.) Jointure is transferable, (Cruise’s Dig., 211; 
 1 Bright, 464,) but dower is not. Whena woman, entitled to dower, 
 joins with her husband in a conveyance, her right is not transfer- 
 red; it is extinguished. “ But a title to dower is, for most pur- 
 poses, nothing more than a right of action; and, consequently, 
 transferable in no other mode than by release to the ferre-tenant 
 by way of extinguishment,” &c., says Park, ibid. And so say 
 our Supreme Court: “It is not in the power of the widow to 
 
120 
 
 transfer any interest in it, until it has been actually assigned. 
 When the dower is assigned, when it is aparted and set off to 
 her, by metes and bounds, then she may sell and convey—not be- 
 fore. The right, the chose in action, if I may so speak, is not 
 assignable. It may be relinquished to him who has the’ next 
 estate of inheritance in the land out of which it is to be carved, 
 but cannot be transferred to a third person.” 
 
 So, in the case supposed, the title to dower might be relinquished 
 to Hunter, but not transferred to Ewing. 
 
 Besides, the supposed case is not analogous, for there is nothing 
 in it to rebut a presumption of a mutual abandonment of the con- 
 tract; but in this case, the parties expressly declare in their post- 
 nuptial agreement, that their ante-nuptial contract, except in the 
 matter of the devise, shall “remain firm.” And whether the 
 post-nuptial contract is valid or not valid, this declaration shows 
 that the ante-nuptial contract, by which the plaintiff is barred, 
 was not meant to be abandoned. 
 
 I might further criticise the hypothetical case of counsel, but it 
 can hardly be necessary to do so. 
 
 4. The plaintiff is not, under the circumstances, at liberty to 
 set up the failure to devise the lots, in order*to get rid of her 
 covenants; for if she could get rid of them, in that way, she 
 would perpetrate a fraud that a court of equity will not tolerate. 
 
 It is unnecessary for me to repeat here the facts of the case—it 
 is sufficient to say, that the failure to devise resulted from the 
 conveyance to Marfield and his associates; that that conveyance 
 never would have been made without her concurrence; that she 
 had it in her power to prevent it, or, at least, to prevent an aliena- 
 tion of her own interest; that she certainly promoted, if she did 
 not suggest, the sale of the property; that she took active meas- 
 ures, by remonstrance and advice, (vide, testimony of Gordon, 
 Wills, et als.,) to counteract any opposition to the sale; that she 
 agreed to accept an equivalent for her interest, and suffered her 
 husband to live and die in the belief that she was satisfied; and, 
 finally, that the equivalent thus agreed upon, is bequeathed to 
 her by the will and ready to be paid. 
 
 Now, under these circumstances, I maintain, that, whether the 
 
121 
 
 post-nuptial agreement is valid or not, the plaintiff is estopped, 
 in equity, to say that her husband’s covenant is broken. I. dis- 
 sent from the proposition of her counsel, that fraud cannot be 
 imputed to a feme covert; but were that so, the question here is, 
 not whether a married woman can be made liable for her fraud, but 
 whether a woman discovert shall be allowed, through the agency 
 of acourt of equity, to perpetrate afraud. It is not necessary for 
 me to show that, in urging and concurring in the sale, she had any 
 latent purpose to do wrong; it is sufficient that she seeks to do it 
 now, and invokes the aid of a chancellor to enable her to do it. 
 She may say, if she please, ‘I was honest in all that I did ”— 
 the language of the law is, ““ You must be honest still.” 
 
 But there is no foundation for the idea that a married woman is not 
 accountable for fraud, or that it cannot be imputed to her. Why, 
 suppose she acquire an estate through fraudulent means, will she 
 not be made to release it? Suppose she convey her own estate to 
 defraud her creditors, will not the conveyance be void? Suppose 
 she obtain money or goods by false pretences, will not she, as well 
 as her husband, be liable to an action? Suppose she stand silently 
 by while her property is sold .as the property of another, can she 
 afterwards reclaim it from an innocent purchaser? Suppose she 
 procure the execution of a will through undue influence or fraud, 
 will it not be set aside? Suppose she take the life of her hus- 
 band to prevent his making a will, will she be absolved from 
 her contract for want of a devise? . Suppose she induce him, by 
 fraud, to omit a devise in the will he does make, will she acquire 
 any greater rights by reason of the omission? Suppose she de- 
 stroy his will, and it cannot be proved, tan. she found any claim 
 on the absence of a will ? 
 
 What say the books ? 
 
 “A married woman is liable for torts actually committed by 
 her.” (1 Chitty’s Pleadings, 76, margin). 
 
 “A feme covert is answerable for an act of fraud, in a 
 court of equity, as much as tf she were a feme sole.” (Jones 
 v. Kearney, 1 Dr. & W., 184, 167; Hill on Trustees, 145, 
 note. ) 
 
 “There is also an implied as well as an express assent; as 
 
 16 
 
122 
 
 where a man who has a title, and knows of it, and stands by, and 
 either encourages, or does not forbid the purchase, he shall be 
 bound, and all claiming under him, by it. Neither shall infancy 
 or coverture be any excuse in such case. And this seems a just 
 punishment for his concealing his right, by which an innocent man 
 is drawn in to lay out his money.” Fonblanque’s Eq., B. 1, 
 Chap. ITT., sec. 4. 
 
 And Story, speaking on the same subject, says: ‘Indeed, cases 
 of this sort are viewed with so much disfavor by courts of equity, 
 that neither infancy’nor coverture will constitute any excuse for 
 the party guilty of the concealment or misrepresentaton; for 
 neither infants nor femes covert are privileged to practice decep- 
 tions or cheats on other innocent persons.” 1 Story’s Com. on 
 Kq., § 385. , 
 
 McVarland vy. Febiger’s Heirs, 7 O. R., 194, is relied on by 
 plaintiff’s counsel. But it decides nothing more than that the de- 
 fective deed of a married woman, will not be treated as an ex- 
 ecutory contract for the conveyance of lands, or release of dow- 
 er—and this for the plain reason, that she is incapable of making 
 such an executory contract in respect to land that is not her sep- 
 arate estate. Judge Lane’s remark about fraud, though some- 
 what unguarded, is plainly limited to the case before the court. 
 And what that, case was, he states himself as follows : 
 “The wife was passive. She was not bound to be otherwise. 
 She assigns a sufficient reason for her passiveness, and for her ac- 
 tion, as far as both went. In her circumstances, there is no taint 
 of fraud in her conduct.” 
 
 But here we set up no such executory contract of a married 
 woman, for the bar to the plaintiff is not in her post-nuptial 
 agreement, but in her ante-nuptial covenants. Besides, she was 
 not merely passive in the sale of the property, but actively pro- 
 moted it, both by advice and silencing objectors. Nor is it a case 
 in which she acted without compensation, as in McFarland vy. 
 Febiger. But, onthe contrary, she is more than compensated. 
 
 Good v. Zercher, (since overruled,) and Purcell v. Goshorn, 
 decide nothing more than McFarland v. Febiger. And all these 
 cases were in the remembrance of the Court, when they said, in 
 
123 
 
 Blake v. Davis, 20 O. R., 244: “To get it, she must present an 
 honest, not a technical case. She cannot, in honesty, take this 
 land from the occupants, while her father’s estate was relieved 
 with the very money that paid for it, and when she has acquiesced 
 in the action of the administrator for more than half a century. 
 I know it is said that she is a married woman; but I have yet to 
 learn that even married women have a right to do wrong. We 
 take from her none of her rights—we only prevent her from tak- 
 ing the rights of others.” 
 
 But it is not necessary that the wife should have been guilty of 
 actual fraud. It is sufficient to bar her, that to allow her to suc- 
 ceed would operate a fraud, 
 
 This is well illustrated by the cases where the owners of lands 
 stood silently by and saw them sold by others to innocent pur- 
 chasers ; as to which cases it is said, (Fonblanque’s Hq., supra, 
 American note,) ‘it seems to be immaterial whether the real 
 owner was induced to conceal his title and omit to assert it from 
 fraudulent motives, or from other considerations which he deemed 
 at the time prudential.” 
 
 The truth of this remark is very clearly shown by the cases of 
 Savage v. Foster, 9 Mod., 35, and Hunsden v. Cheyney, 2 
 Vern., 149, in which married women, seized of lands under mar- 
 riage settlements, lost them by such silence, though it was not in- 
 tentionally fraudulent. 
 
 And the case of Livingston v. Livingston, 2 J. C. R., 539, 
 which was a case of a different sort, strongly illustrates the doc- 
 trine; for in that case the Court enforced performance of a con- 
 tract between husband and wife, against the heirs of the latter and 
 in favor of the former; not onthe ground that the wife had acted 
 fraudulently, but.that the |usband would be defrauded if the 
 contract were not specifically decreed. The plaintiff’s counsel 
 say that this was a case of a resulting trust; but the Court went 
 upon no such ground, for that would have required a decree for 
 the title to the newly purchased lot. But the decree rendered by 
 the Court was for the sale of the old one, which could only be 
 done on the doctrine of specific performance and for the preven- 
 
124 
 
 tion of fraud. Counsel also intimate that the Chancellor may 
 have derived some special power to pronounce “that decree from 
 the statute of New York, to which he refers. But a reference to 
 the statute will show that it was no part of its purpose to enforce the 
 performance of contracts that were wanting in validity; its only ob- 
 ject being to authorize a transfer of an infant’s title where there was a 
 valid obligation to transfer. There is not a word in the statute that 
 warrants the idea that it was intended to apply to any bargain, 
 contract or agreement that would not have been specifically en- 
 forced against the party who executed it; and such an idea would 
 be nothing less than absurd—besides which, there is not a word 
 to that effect in the opinion of the Chancellor. The statute is as 
 follows : ‘‘The court of chancery shall have power to decree, and 
 compel a specific performance, by any infant heir or other person, 
 of any bargain, contract or agreement, made by any party who 
 may die before the performance thereof, on petition of the execu- 
 tors or administrators of the estate of the deceased, or of any 
 person or persons interested in such bargain, contract or agree- 
 ment, and on hearing all parties concerned, and being satisfied 
 that the specific performance of such bargain, contract, or agree- 
 ment, ought to be decreed or compelled.” Laws of 1814, (N. Y.,) 
 
 , £29, $3: 
 
 “the doubt implied by the remark of the Chancellor, “I pre- 
 sume I have power to carry this partly executed agreement into 
 effect, under the 3d sec.,” &c., was a doubt whether there had 
 been such part performance as to take the agreement, which was 
 verbal, out of the operation of the Statute of Frauds. 
 
 VIII. Tf have thus far treated the case as if the post-nuptial 
 agreement had no validity, and have demonstrated, I trust, that, 
 even in that view of it, the plaintiff remains barred. I now pro- 
 pose to show that the agreement is valid; 1. Because the plain- 
 tiff’s estate was her separate property, in respect to which she had 
 the powers of a feme sole. 2. Because a post-nuptial contract 
 is not necessarily void, but may be specifically enforced where 
 justice requires it; and that is this case. 
 
1. Was the estate her separate property? By the language 
 of the covenant, it was ‘‘to be held and possessed by her, for her 
 sole use and benefit during her natural life;” and that these 
 words are sufficient to create a separate estate, cannot be denied. 
 Indeed, they are the very words mentioned in the books, as most 
 apt and proper for that purpose. (Story’s Eq., sec. 1382, and 
 cases cited.) But it iscontended by her counsel that these words 
 only express a fact that would have existed were they stricken 
 out; for, it is said, that as she, was to come into possession after 
 the death of her husband, she would, of course, hold the estate, 
 after she came into posesssion, free from marital right But this 
 reasoning is unsound, and the construction inadmissible—l. Be- 
 cause it violates the rule requiring effect to be given to every 
 word of the contract, if that ean be done; and, 2. Because, in 
 the event of a subsequent marriage, the plaintiff would have held 
 the estate as her separate property, free from all marital right of 
 her second husband; which would not be the case were the words 
 stricken out. But if it would be her separate estate in the event 
 of a second marriage, it was always such an estate; for the na- 
 ture of the estate could not be one thing at one time, and another 
 thing at another. That where property is given, or limited, to 
 the sole use and benefit of a woman, whether married or unmar- 
 ried, it is her separate property under every coverture that may 
 happen, is now too well settled to admit of dispute. Some doubt 
 was once thrown on this point by Lord Cottenham, when Master 
 of the Rolls, in a dictum in Massey v. Parker, 2 M. and K. 174; 
 but, as said by Hill in his work on Trustees, 419, “in the sub- 
 sequent cases of Tollet v. Armstrong, and Scarborough v. Bow- 
 man, in which it became necessary to adjudicate on the point, 
 Lord Langdale, M. R., decided in favor of the validity of the 
 trust for the separate use; and in affirming those decisions on 
 appeal, Lord Cottenham, when Chancellor, formally overruled his 
 own dictum in Massey vy. Parker, and finally established the doc- 
 trine as stated above.” 
 
 And Bright says: (vol. 2, 205.) “A trust for .the wife’s 
 separate use is effectual against the husband, although the wife 
 may be unmarried at the time of the creation of the trust, or 
 
126 
 
 being married at that period, may have become discovert, and 
 afterwards married again. This point was decided at common 
 law in the case of Beoble v. Dodd, and afterwards by Sir J. 
 Leach, V. C., and also by Lord Eldon in the case of Anderson 
 v. Anderson ; and it does not appear to have been doubted until 
 some observations which fell from Lord Cottenham, then M. R.., 
 in the case of Massey v. Parker. But the validity of such trusts 
 is now fully established by the authority of Jollet v. Armstrong.” 
 
 In truth, in this case, the very terms of the contract render any 
 other construction impossible; for not only is there a total ab- 
 sence of any limit of the separate use to a particular cover- 
 ture, but the contract expressly declares that it is to exist “ dur- 
 ing her natural life.” Now, had Mr. Ross died seized of the lots, 
 and had the plaintiff married again, no court would think of 
 holding that her second husband had any rights in the property; 
 or would listen to an argument that the words, “for her sole use 
 and benefit during her natural life,” were to be rejected or frit- 
 tered away—her separate estate would be too manifest to admit 
 of any controversy. But, as before said, the contract makes no 
 discrimination between one coverture and another, and neither 
 does the law where the parties have not discriminated ; from which 
 it inevitably results, that the estate was as much her separate 
 property during the coverture of Mr. Ross, as it could ever be 
 under any other coverture. 
 
 In respect to the general doctrine of the power of a married 
 woman to dispose of her separate estate, I need only refer to 
 the citations of my associates. And as to her power, where the 
 estate is contingent, I submit that nothing conld be more satisfae- 
 tory than the observations of Messrs. Hunter & Daugherty. 
 The cases of Richards v. Chambers, and Seaman v. Duill, 10 
 Ves. 580, and Lee v. Muggeridge, 1 Ves. and B. 117, do not 
 touch this case. The first two cases related wholly to personalty ; 
 and, in the latter case, the wife had no estate in the land, but only 
 aright to rents and profits. The land itself was limited to 
 trustees, to pay the rents and profits merely to her separate use ; 
 and upon the distinction between that and a limitation to her of 
 
| 
 
 127 
 
 the land itself, the counsel for her estate, Sir Samuel Romilly and 
 others, grounded their argument; which they opened by saying : 
 “Tf the plaintiff can establish that Mrs. Muggeridge had sepa- 
 rate property, then, under the authority of Peacock v. Monk, 
 Hulme v. Tenant, and other cases of that class, he must recover ; 
 but the rents and interest only are settled to her sepa- 
 rate use, for the joint lives of her and her husband; not the 
 capital of her estate, which is left subject only to her appoint- 
 ment by will; of which, therefore, she could make no disposition 
 by deed in her husband’s life. The case of Heatley v. Thomas, 
 has no application ; the whole property was vested.solely in the 
 married woman; who could, therefore, immediately after the exe- 
 cution of the settlement, have disposed of it by deed; no such 
 power existing in this case.” 
 
 And the Master of the Rolls began his decision by noting the 
 same distirfction, as follows: ‘‘ Whether the case of Heatley v. 
 Thomas be well or ill decided, it has no bearing upon the pres- 
 ent. There was a declaration of trust, as to the whole fund, for 
 the sole and separate use of the wife; not, as in this case, as to 
 the interest only.” 
 
 It is thus manifest that these cases all stand on the same 
 principle ; and so it was declared by the court in Lee v. Mug- 
 geridge ; and now what is that principle, if carried to the fullest 
 extent that can be deduced from the cases? It is simply this, 
 that where the property is such, that the law provides no mode 
 for its disposition by a married woman, to wit: personalty, and 
 her title thereto is merely contingent, she has no power of alien- 
 ation until the contingency occur. And hence, if that contin- 
 gency be the death of her husband, she has no power of aliena- 
 tion while the coverture lasts. In such a case it will be presumed 
 that it was the intention of the parties to place the property be- 
 yond the power of the wife during the continuance of the cover- 
 ture, there being no means by which she ean dispose of it without 
 the aid of a court of equity. But the principle has, obviously, 
 no application, where the thing settled on the wife is real estate, 
 which, by express provision of the statute, she has power to con- 
 vey by statutory deed, so as effectually to bar herself of any and 
 
128 
 
 every claim to it. In the latter case, it cannot be presumed that 
 it was the intention of the parties to put the property beyond the 
 power of the wife; for they could not but know, when making 
 the settlement, that she might effectually part with it by a deed 
 of husband and wife, which, if it did not transfer, would at least 
 have the effect to extinguish her estate, or to create an estoppel 
 against her. And this distinction is fully recognized in the above 
 mentioned cases, for the Master of the Rolls, (10 Ves. 587,) very 
 clearly admits, that had the thing been realty, it might have been 
 aliened by a fine. And what possible doubt can there be about 
 it, since a fine with warranty, or our statutory deed with such a 
 covenant, effectually estops her from ever afterwards setting up 
 title to the land. 
 
 But again: suppose the estate in this case had been to take 
 effect in possession as soon as the marriage was solemnized, there 
 would not be a doubt as to the plaintiff’s power of disposition ; 
 she would clearly have the same power over it in equity, as though 
 she were a feme sole; and yet, even in that case, she could not 
 pass a legal title without the concurrence of her husband in a 
 statutory deed. In that case, the necessity of his concurrence 
 would raise no manner of presumption that it was the intention of 
 the parties to place the property beyond her power of disposition, 
 and neither will it in this. 
 
 Bat, in truth, it matters not whether the estate was alienable 
 or not, so as to continue in the purchaser as a subsisting estate. 
 Separate property may be alienable or inalienable, according to 
 circumstances. Butif the right to it may be extinguished ac- 
 cording to law, a contract for its extinguishment is as good as 
 one for its alienation, where it is unquestionably alienable. This 
 is well illustrated in principle by the analogous case of dower, in 
 which it has uniformly been held, that if the husband agree with 
 the wife to pay for her relinquishment of dower, and she execute 
 a deed that effectually relinquishes it, the contract to pay is obli- 
 gatory. Garlick v. Strong, 3 Paige, C. R., 440; Bullard v. 
 Briggs, 7 Pick., 533. 
 
 But the case of Scot v. Bell, 2 Levinz, 79, (cited with appro- 
 
129 
 
 bation in Bullard v Briggs,) is more directly in point. There, 
 Sir Robert Bell, on his marriage with Mary Cheek, settled on her 
 certain lands in jointure. Some time after the marriage, in con- 
 sideration that she would joir in a fine of the jointured lands, he 
 agreed to settle upon her other lands. She joined in the fine, and 
 he made the new settlement. Held by the Court, that the new 
 settlement was valid and should be maintained. 
 
 As to what is said by the learned counsel about the statute of 
 frauds, it amounts, I respectfully submit, simply to this—that if 
 your Honor verbally agree to sell me your farm for $10,000, 
 which I verbally agree to pay, and, pursuant to the agreement, 
 you convey the farm to me, or to my appointee, the agreement is 
 void by the statute of frauds, and you can’t recover the money. 
 The plaintiff agreed to join in the conveyance to Marfield for 
 $10,000, and she did so. She has thereby irrecoverably lost the 
 land, and, according to her counsel, the contract for the money is 
 void. I beg leave to suggest, however, that it is only the con- 
 veyance that need be in writing. I may plead the statute of 
 frauds before I receive or make a conveyance, but not afterwards. 
 
 2 But independent of the doctrine of separate property, a 
 post-nuptial contract is not necessarily void; but may be specifi- 
 cally enforced where justice requires it. 
 
 Contracts between husband and wife are void at law, upon the 
 theory that they have no separate identity ; but, in equity, their 
 separate existence is recognized, and their contracts are, at most, 
 but vordable ; and not always that. For if the contract is rea- 
 sonable, and has been relied and acted upon, so that not to en- 
 force it would operate a fraud, it will be enforced. In sucha case, 
 the wife, or widow, is not permitted to elect; but will be bound 
 by the contract which, in foro consciente, she ought to abide by. 
 The case of Livingston v. Livingston is clear to this point; and 
 if that case has ever been dissented from, the dissent remains un- 
 discovered. Certain it is, it has the sanction of great names ; 
 for it was decided by Kent and fully approved by Story, who, 
 in his Commentaries on Equity, treats it as unquestionable law, 
 
 17 
 
130 
 
 and places it on precisely the true ground. He says (Sec. 1872): 
 “But here again, although courts of equity follow the law, they 
 will, under particular circumstances, give full effect and va- 
 lidity to post-nuptial contracts.”? Then follow illustrations, 
 among which is the following, which he supports by a reference to 
 Livingston v. Livingston and other authority: “So, if the hus- 
 band and wife, for a bona fide and valuable consideration, should 
 agree, that he should purchase land, and build a house thereon 
 for her, and she should pay him therefor out of the proceeds of 
 her own real estate; if he should perform the contract on his 
 side, she also would be compelled to perform iton her side.” 
 
 Here Mr. Ross did perform. He executed the ante-nuptial 
 contract so far as it remained unmodified, and he executed the 
 modification by devising the $10,000. By virtue of his perform- 
 ance, the plaintiff has been greatly benefited, and to put the par- 
 ties tn statu quo is manifestly impossible. Could there be a 
 clearer case for holding her bound ? 
 
 And observe how much further the authorities go than is neces- 
 sary for our support. In Livingston v. Livingston, the agree- 
 ment was wholly post-nuptial—in this ease, it is the plaintiff ’s 
 ante-nuptial covenants that bind and bar her. In that case, the 
 question was on sedéing up the agreement—in this case, it is on 
 setting it aside. In that case, a conveyance was necessary on 
 the part of the woman’s heirs—in this case, the plaintiff is barred 
 without a further release. 
 
 Counsel say that a wife cannot part with her expectancy in an 
 estate, and they cite Needles v. Needles. The case don’t so decide ; 
 but if it did, it would have no application; for, as above said, it 
 is by the ante-nuptial contract that the plaintiff is barred. She 
 had no expectancy in the personal estate to sell, when the post- 
 nuptial contract was made; for the effect of the ante-nuptial con- 
 tract was to prevent any right of hers from ever attaching to that 
 estate—as has been shown already, and will be further shown 
 hereafter. 
 
 IX. But suppose the plaintiff has an election, the question re- 
 mains, whatisit? Is ita right to elect between dower and distribu- 
 tion on the one side, and the $10,000 on the other; or, between the 
 
131 
 
 $10,000 and the value of the unperformed ante-nuptial provision ? 
 I unhesitatingly affirm that, both on principle and authority, it 
 must be the latter; and I chuilenge the production of a case that 
 tends to prove it is the former. I don’t ask for a case “on all 
 fours,” for that may not be in the books. I only ask for a case 
 that in principle supports the plaintiff’s claim. Cases enough 
 may be found in which it is held that a woman is not bound to 
 take a post-nuptial settlement, but may elect to avoid it and claim 
 dower and distribution—for that is common doctrine—but they 
 are all cases in which there was no ante-nuptial contract. Or, if 
 there is any such case, in which there was an ante-nuptial con- 
 tract, such contract had been abandoned, expressly or in fact. 
 But here, it is idle to talk of an abandonment; for the parties 
 both declared, in their post-nuptial agreement, that the ante-nup- 
 tial agreement was not thereby set aside; and they both treated 
 it as existing until the death of Mr. Ross. For more than five 
 years that he lived, after the conveyance to Marfield, she continued 
 to hold and enjoy the whole of her personalty, by virtue of the 
 ante-nuptial contract; and by virtue of that contract she still 
 holds and enjoys it. On the other hand, he never thought of 
 claiming her property, and by his last will and testament he exe- 
 cuted the contract, as modified, by devising her the $10,000. And 
 the Answer expressly avers that it was so treated by the parties so 
 long as he lived; an averment that is in nowise controverted by 
 anything in the Reply. To talk of abandonment, under circum- 
 stances like these, would be simply ridiculous; with respect be it 
 spoken. 
 
 Now, may it please your Honor, on what principle does elec- 
 tion rest in the case of a voidable contract? Does it go upon the 
 ground of giving the electing party more than he or she could 
 have claimed had no such Contract been made? That would be 
 a strange kind of an election—an election between the provisions 
 of the contract and rights that never had an existence! - Here, 
 the plaintiff never had a right to dower and distribution, for the 
 ante-nuptial contract took the place of that right; and yet it is 
 pretended that by electing to avoid the post-nuptial agreement, 
 she acquires that to which she never had the least title. It is not 
 
152 
 
 sufficient, in the opinion of her counsel, that she shall be restored 
 to the rights of which the post-nuptial contract would deprive 
 her; but your Honor must go further, and because she may avoid 
 the post-nuptial agreement, (assuming that to be so,) permit her 
 to avoid the ante-nuptial also. In other words, you are asked to 
 hold, that because a married woman is incapable of making a 
 binding contract, the contract of a single woman ought to be set 
 aside. Had the ante-nuptial contract been abandoned by the 
 parties, the case would be wholly different; but, not having been 
 abandoned, you are asked to disregard it because a subsequent 
 contract may not be obligatory. 
 
 But, may it please your Honor, the law is not so absurd; and 
 the principle of election is too clear for dispute. It is nothing 
 more than this, that the electing party has a right to insist upon 
 the contract, or to set it aside and be placed, literally or bene- 
 fivially, in statu quo. If he can be literally restored to what 
 the contract would displace, he must be so restored ; but if that 
 cannot be done, he must be restored bene fictally—that is, com- 
 pensation must be made. Thus, if an infant sell his goods, he 
 will have a right, when adult, to insist upon the contract and de- 
 mand payment of the price; or, electing to disaffirm it, he may 
 recover back his goods, or their value if they be lost. So, if a 
 man obtain, by fraud, a conveyance of my land, I may stand by 
 the conveyance and enforce payment of the purchase money; or, 
 I may have it set aside and recover back my land. But if he 
 shall have conveyed it to an innocent purchaser, so that he can- 
 not restore it, I must abide by my conveyance or aecept compen- 
 sation. So, here, if the plaintiff has an election, it is a right to 
 determine whether she will take the $10,000, or demand, as com- 
 pensation, the value of her lost life estate in the lots. If she 
 make that demand, we are ready to Mheet it—it falls short of the 
 $10,000; but if it be more, we are yet ready to pay, if she is en- 
 titled to make the demand. 
 
 Let us suppose, by way of further illustration, that Mr. Ross 
 had repurchased the property, and died seized of it, and that the 
 plaintiff has a right to avoid the post-nuptial contract ; would 
 there be any doubt, that if she elected to avoid it, she would be 
 
133 
 
 compelled to accept a life estate in the lots? Or, suppose that 
 the property had not been sold, and that Ross and his wife had 
 agreed that, instead of the life estate, he should bequeath her 
 $10,000, and he had made the bequest and died owning the 
 property; would not her election be the same? But if this 
 would be so—and it is too clear to be questioned—upon what 
 principle can she claim to have dower and distribution ? Not on 
 the ground that the life estate was not devised, for there is no 
 such devise in the cases above supposed ; not on the ground that the 
 contract was abandoned, for the idea of abandonment is too flimsy 
 _ a pretense ; not on the ground that a life estate cannot be valued, 
 for such estates are appraised, every day, when sold on execution; 
 not on the ground that compensation cannot be made, for the 
 money is here, ready for her acceptance. There is nothing then 
 upon which to found such a-claim. 
 
 We have seen that even where the husband, without any ex- 
 cuse, failed to perform, Sir Anthony Hart and Vice Chancellor 
 Bruce gave to the widow only the value of her jointure ; that 
 the Supreme Courts of Massachusetts and Maine have intimated 
 that such may be the ultimate result of even a litigation at law ; 
 and that no case has been produced that conflicts with these au- 
 thorities. But, if in a case where there is no post-nuptial agree- 
 meut to excuse non-performance, the widow is not remitted to 
 dower and distribution, but must take the value of the ante-nup- 
 tial provision, with what face can it be pretended that where per- 
 formance is thus excused, she can get more than that provision, 
 by electing to avoid the post-nuptial contract ; and that too in a 
 case where the ante-nuptial contract has not been abandoned ? 
 
 Nor will your Honor fail to observe the principle of our joint- 
 ure act, that where the widow is evicted from her jointure, she is 
 not remitted to dower, but gets an equivalent for what she has 
 lost. If this is the rule where she is in no wise accessory to the 
 loss, with how much more reason is it the rule where she makes 
 her claim by electing to avoid her contract. 
 
 X. It was said at bar, by one of the plaintiff’s counsel, that 
 
154 
 
 the defendants are mere volunteers, who, therefore, have no right 
 to enforce performance ; the articles remaining, according to the 
 same argument, executory. ‘This point seems to be abandoned, 
 as there is nothing of it in the priuted argument of counsel ; 
 for which reason, and also because it has been discussed, in a 
 masterly manner, by my associates, Messrs. Hunter & Daugherty, 
 I ought, perhaps, to pass it by without remark. But as I have 
 
 a desire, pardonable I hope, to make thorough work in this case, — 
 
 I will, with as much brevity as possible, say something upon it. 
 The theory of the point is, that collateral relations, even broth- 
 ers and sisters, are mere volunteers; and hence it was argued, 
 they can derive no benefit from a contract Jike this. The first 
 thing that strikes one, in looking at the objection, is, that if it 
 be sound, perhaps nine out of ten of marriage agreements with 
 us will be utterly defeated, if there be a failure of issue. Or, 
 rather, which is worse, they will be observed by the parties 
 during their joint lives, and become mere instruments of fraud as 
 soon as either of them die. To illustrate by this case, it cannot 
 be denied that it was the purpose of the parties that Mr. Ross 
 should have power to dispose of his estate, in the event of his 
 death, to whomsoever he pleased ; saving the plaintiff’s right to a 
 life estate in the lots. The purpose is distitetly declared in the 
 preamble to the contract, as well as necessarily to be inferred 
 from the circumstances of the case; and the contract is precisely 
 the same in its legal effect, as though a power of appoiutment 
 by will were, in terms, contained in it. On the faith of this 
 contract, the marriaga took place; and Mr. Ross faithfully ob- 
 served it as long as he lived; the consequence of which is, that 
 the plaintiff holds her own estate with the whole of its increase, 
 in addition to ten years’ support that she received out of his. 
 Now, if she can defeat the very purpose of the contract, by 
 taking his estate too, upon the theory that the objects of his 
 bounty are meré volunteers; that those for whose benefit it was 
 made, have no power to enforce it; it is manifest the instru- 
 ment becomes a mere engine of fraud. And the case would be 
 
 the same, had her ante-nuptial provision been ten-fold what it 
 
 was; for this volunteer doctrine don’t depend on the quantum 
 of consideration. 
 
 _ 
 
135 
 But there is nothing in the point, and this for several reasons : 
 
 1. The doctrine only applies where a covenant to settle is 
 sought to be enforced. But the covenant of the plaintiff, upon 
 which we rely, is not of that character, as was expressly said by 
 the court in Hardy v. Van Harlingen. She covenants to settle 
 nothing on Ross or his appointees, but merely to suffer him to 
 dispose of his own estate according to his will. Had she cove- 
 nanted to settle her property on him and his devisees, and were 
 the defendants here claiming 7 under his will, and asking your 
 Honor to compel her to convey, the question would arise whether 
 they are mere volunteers; but as it is, there is no such question 
 in the case. The books will be ransacked in vain, I think I may 
 safely venture to say, to find any case that holds that there is 
 such a question here. 
 
 In Hardy v. Van Harlingen, the husband covenanted that the 
 wife should have her own estate, and that, at her death, it should 
 pass to her legal distributees and heirs; here, the wife covenants 
 that the husband shall have his estate, and that, at his death, 
 it shall pass to his devisees and legatees; the cases, in principle, 
 are identical. Mrs. Van Harlingen died without issue, and her 
 brothers and sisters claimed the property, by virtue of the ante- 
 nuptial contract, and filed a bill to recover it—her late husband 
 claiming part of it under post-nuptial gifts, and the residue be- 
 ing in the hands of an executor. It is, therefore, quite appa- 
 rent, that if the brothers and sisters of Mr. Ross are mere vol- 
 unteers, entitled to no relief, the brothers and sisters of Mrs. 
 Van Harlingen were in precisely the same category. Or, to 
 speak more correctly, they were in a still worse condition, for 
 they were not brought into court as defendants, but they brought 
 the suit themselves, and asked the aid of the chancellor. It 
 was, therefore, an a fortiori case for the application of the doc- 
 trine, if it had any application. But what said the court? 
 Why, as to the property that was covered by the post-nuptial 
 gifts, they sustained the title of the husband, because the gifts 
 
 were valid; but the residue of the property they gave to the 
 
 complainants, upon the express ground that they were entitled to 
 it by the ante-nuptial agreement. They said: ‘As to the resi- 
 
136 
 
 due of the legacy, still in the hands of the executor, and of 
 which no disposition was made by Mrs. Van Harlingen, the 
 terms of the ante-nuptial agreement will pass it to the com- 
 plainants.” The case, therefore, is a direct authority that brothers 
 and sisters are entitled to enforce such a contract; and if en- 
 forced at all, it is so for the benefit of all, whether volunteers or 
 not. (Story’s Eq., § 986.) This is the well settled doctrine, 
 and is properly admitted by plaintiff’s counsel, on page 7 of their 
 argument. Among the defendants here are brothers of Mr. 
 Ross, and the contract will therefore be enforced for the benefit 
 of all the legatees. 
 
 2. In consideration of the plaintiff's covenants, Mr, Ross 
 barred himself of all marital right to her personalty, and also of 
 all right to curtesy, and covenanted to devise her a life estate in 
 the lots. Her covenants stand, then, not upon the consideration 
 of marriage alone, (though that would be quite sufficient,) but 
 upon a valuable pecuniary consideration in addition. And now 
 let us see how the case stands in this view of it. 
 
 The doctrine, in relation to volunteers, belongs to the law of 
 gifts : they are called volunteers because they claim a mere vol- 
 untary provision. Now, the general rule being that a promise 
 to give will not be enforced, it, of course, became a question, in 
 considering executory marriage articles, whether a covenant to 
 settle was simply a promise to give, or was a covenant supported 
 by a sufficient consideration. It was at first resolved thus: If 
 the person to take was one for whom the settler was bound to 
 provide — ea. gra., a child —the duty of making provision was 
 a meritorious consideration, and the covenant would be enforced ; 
 for it was not a mere gift. But if the taker was one for whom 
 the settler was not bound to provide —ex. gra., a collateral re- 
 lation or a stranger—the covenant was not enforceable by the 
 taker ; because it was deemed a mere gift. 
 
 But it was soon discovered, that this rule, in its practical 
 effect, was constantly defeating the intention of the parties, by 
 diverting their estates from the objects of their bounty, and turn- 
 ing them into channels where they never intended they should go. 
 The courts began, therefore, to introduce exceptions, and it was 
 
137 
 
 soon firmly settled, that if any part, however small, of the con- 
 sideration of the articles moved from a third person, it would sup- 
 port the covenant in favor of collaterals; and this upon a pre- 
 sumption that so it was intended, although the truth of the case 
 might be directly the reverse. (9 How. 209.) But the courts 
 did not stop here; for it was soon after intimated, that the bare 
 consent of a father.to the marriage of his son, was a sufficient 
 consideration, moving from the former, to support a covenant to 
 settle on a brother. Then it was ruled, in Vernon v. Vernon, 2 
 P. Wms. 594, that a liability to an action at law, on a covenant 
 to settle on a brother, would authorize a decree for performance ; 
 or, that a desire, on the part of the intended husband to compen- 
 sate the brother for a void legacy, would authorize such a decree ; 
 though no part of the consideration of the articles moved from a 
 third person. And it has been held, that if the agreement be 
 under seal, it imports a sufficient consideration, and will be en- 
 forced in favor of a collateral, a mistress, or a bastard. (Beard 
 v. Nuttall, 1 Vern. 427; Bunny. Winthrop, 1 J.C. R. 329.) 
 These exceptions, and others that might be mentioned, fully 
 justified the remark of Lord Hardwicke, in Stephens v. Trueman, | 
 1 Ves. sr., 74, when speaking of marriage articles, and the rule 
 in question: “but as agreements are entire, and the several 
 branches might have been in view, the court has, in later cases, 
 laid hold of any circumstances to distinguish them out of tt, 
 still preserving the rule in general. If, therefore, there was any 
 kind of consideration, the court would lay hold of it to support 
 it.” And with equal truth it was said, in Neves v. Scott, that the 
 rule “has been made the subject of so many exceptions and qual- 
 ifications, that it can scarcely, at this day, be regarded as author- 
 ity.” And it was surely high time to overturn a rule that would 
 have said to Mr. Ross, (assuming this case to fall within it,) 
 “You may pay to your intended wife $100,000 for her covenants, 
 but that won’t prevent her from claiming the residue of your es- 
 tate ; but if you will pay her $5,000, and get your nephew, Mr. 
 Wilson, to pay her one dollar more, you can do what you please 
 with your property; and your relatives will have the aid of the 
 chancellor to enforce the performance of the contract.” | 
 18 
 
138 
 
 But there is no such absurdity any longer existing, for the rule 
 is now settled, both in England and the United States, that no 
 part of the consideration need move from a third person, for the 
 collaterals shall have performance though it move wholly from the 
 husband or the wife. That was the necessary effect of Vernon 
 v. Vernon, and the late case of Davenport vy. Bishopp, 2 Younge 
 and Collyer, 451, 21 Eng. Chy. Rep., puts the question com- 
 pletely at rest. It was a case of a marriage settlement, with ex- 
 ecutory eovenants for a further settlement, which, inter alia, 
 made a provision for a niece of the wife; and on a bill to com- 
 pel performance, after the death of the wife and also of the niece, 
 it was objected that the niece, and of course her heirs, were mere 
 volunteers. But the Court overruled the objection, in language 
 the most pointed, and held, that: “If two parties, for valuable 
 consideration, enter into a contract of which one of the stipula- 
 tions is solely for the benefit of a third person, who is a stranger 
 to the contract, and from whom no consideration moves, it is not 
 competent to either of the contracting parties afterwards to ob- 
 ject to that stipulation.” 
 
 And Neves v. Scott is equally decisive ; the Court stating the law 
 thus: ‘‘The result of all the cases, I think, will show, that if, 
 from the circumstances under which the marriage articles were 
 entered into by the parties, or as collected from the face of the 
 instrument itself, it appears to have been intended that the col- 
 lateral relatives, in a given event, should take the estate, and a 
 proper limitation to that effect is contained in them, a court of 
 equity will enforce the trust for their benefit.” 
 
 This is precisely our case, with the single exception, that, instead 
 of an express limitation to the defendants, a power of appoint- 
 ment is given to Mr. Ross. But this, obviously, makes no dif- 
 ference ; and, indeed, a power of appointment oceurs quite as 
 frequently in articles like these as does an express limitation. 
 
 Besides, the absence of a limitation makes no manner of dif- 
 ference where the intent of the parties is sufficiently apparent, as 
 was distinctly held in Anights vy. Atkins, 2 Vern.. 20, approved 
 in Lechemere v. Carlisle, 3 P. Wms, 217. 
 
 Kent lays down the general rule thus (2 Com., 173): “ Equity — 
 
; 
 c 
 . 
 
 | 
 
 139 
 
 will execute covenants in marriage articles at the instance of any 
 person who is within the influence of the marriage consideration, 
 and in favor of collateral relations, as all such persons rest their 
 claims on the ground of a valuable consideration.” 
 
 And marriage being a valuable consideration of itself, our Su- 
 preme Court, in Hardy v. Van Harlingen enforced performance 
 where there was no pecuniary consideration. And the remarks 
 of the Court in Davenporty. Bishopp, and Neves v. Scott go to 
 that extent. 
 
 8. I have already said that the doctrine of volunteers is part 
 of the law on the subject of gifts; and that a mere promise to 
 give will not be enforced. But it is equally well settled that an 
 executed gift will not be set aside. And that is this case; for 
 it cannot be denied that a devise or a legacy is an executed gift. 
 We do not, then, ask, as plaintiff's counsel suppose, that the 
 Court shall make us cestuis que trust, for we are already such by 
 the testator’s appointment. Westand upon an executed settle- 
 ment, and not upon mere articles; and it will not be disputed, 
 that when a settlement is made, there is no longer room to talk 
 about volunteers. The property in question belonged to Mr. 
 Ross, and by his marriage contract he acquired power to settle it 
 upon whomsoever he pleased. He has made that settlement by 
 his last will and testament, and there is nothing executory remain- 
 ing in the case. 
 
 4. The contract is under seal; and, therefore, imports a sufficient 
 consideration to enable collaterals to enforce it. Beard v. Nuttall, 
 1 Vern., 427; Bunnv. Winthrop, 1J. C. B., 329. 
 
 5. The defendants are not here in the character of actors. They 
 have neither brought this suit, or demanded affirmative relief. 
 They ask no conveyance or release from the plaintiff, for they in 
 nowise regard her covenants as executory. She is already barred, 
 without any further act, as has been heretofore shown, and will be 
 further shown hereafter. But it is only when a party is seeking 
 affirmative relief, that he can be met with the objection that he is 
 a volunteer. 
 
140 
 
 XJ. The plaintiff has no title to the personality, either at law or 
 in equity—and would not have, even had Mr. Ross died intestate. 
 This is, of course, stronger doctrine than is necessary for our de- 
 fense ; but it is, nevertheless, true and well supported by authori- 
 ty. The principle is, that the ante-nuptial contract takes the 
 place of the law, so that the latter can never operate to vest any 
 title in the widow; and the estate, (except what the contract 
 may give ber,) is to be distributed as though she had never ex- 
 asted. 
 
 This principle was fully recognized and acted upon by the court 
 in Hardy v. Van Harlingen; the court saying, in reference to 
 the marriage agreement and its effect: ‘‘We regard this simply 
 as a declaration that the legal rights of the husband shall not at- 
 tach to this property, either during the life of the wife, or wpon 
 her decease.” And the court held that such was its effect, and 
 made their decree accordingly. 
 
 In Maurer vy. the Ex’rs of Maurer, 5 Md. Rep. 324, (decid- 
 ed as late as 1854,) it was held that a widow was not entitled to 
 contest her husband’s will, or to administer his estate if the will 
 were void; because, by an ante-nuptial contract, she had cove- 
 nanted that she would inake no claim to his property. That it 
 was no consequence to her whether he died testate or intestate ; 
 for, in either event, she had no title. And, referring to Ward vy. 
 Thompson, 6 Gill & Johns., 349, in which administration on a 
 wife’s estate had been refused to the husband, the court said : 
 “We have no doubt that the court would have also decided, if the 
 question had been before them, that Thompson had no interest 
 whatever in any part of the wife’s estate. That is certainly the 
 effect of the agreement in this case.” 
 
 Davila v. Davila, 2 Vern., 724, is directly in point. Mr. Da- 
 vila, before marriage, covenanted to pay his intended wife “£1,500 
 in a month after his decease, in full of dower, thirds, custom of 
 London, or otherwise out of his real or personal estate.” After 
 the marriage, he “died intestate and without issue; his widow 
 brought her bill against the administrator of her husband, to have 
 a moiety of the personal estate by the statute for distribution 
 of intestates’ estates.” Held, that she was not entitled to any- 
 thing as distributee; but only to the £1,500, 
 
: 
 ) 
 : 
 
 141 
 
 And see 2 Ves., jr., 284, note 4, as follows: ‘A similar rule 
 applies even as to personalty, in cases where it has been agreed 
 by contract, before marriage, that the wife’s claims in respect 
 thereof shall be barred; there, if the husband die intestate, the next 
 of kin take, without any reference to the widow.” 
 
 And 4 Ves., jr., 850, note 1: ‘‘So an agreement between ba- 
 ron and feme, barring a wife’s claim to a distributive share under 
 the custom of London, throws such share into the general resi- 
 due of the husband’s personal estate, which, if he die intestate, 
 will be distributable amongst his next of kin only.” 
 
 And so, in Pickering v. Lord Stamford, 3 Ves., jr., 331, the 
 court said that the effect of an ante-nuptial contract “that the 
 wife shall not claim either dower or personal estate,” is not mere- 
 ly to give the husband a disposing power over it; for she “shall 
 be barred though she does not give it away; a 7s exactly as tf 
 there was no wife; and the next of kin take without any refer- 
 ence to her.” And see note (a) to that case, page 331. 
 
 And Lord Hardwicke enunciated the same doctrine, in Glover 
 v. Bates, 1 Atk. 439, when he said: ‘The wife’s distributory 
 share of her husband’s personal estate, though not properly the 
 subject of a release, may, certainly, be extinguished by agree- 
 ment.” 
 
 Indeed, the doctrine is so well settled, that it is laid down in 
 all the text books on the subject. See 2 Williams on Exs. 1277, 
 sec. 2; 1 Bright’s H. & W. 317, § 32. 
 
 It will be observed, that no allusion is made to the forwm, in 
 laying down the rule; it is a rule that governs executors and ad- 
 ministrators, as well as chancellors, in the distribution of estates. 
 Wherever, whenever, and by whomsoever, the distribution is made, 
 it is to be “exactly as if there was no wife ;” and the reason is, 
 that the parties have put their contract in the place of the law, 
 and the right of the widow is thereby “ extinguished ; ” or, rather, 
 it never attached. 
 
 Nor does it matter how much her covenant is executory in form. 
 It may be, a8 in most of the cases cited, that she will not claim, 
 &e.; or, as in this case, that she ‘hereby binds herself to waive, 
 renounce and relinquish,” it Operates, per se, and no further re- 
 lease or assurance is necessary. 
 
142 
 
 XII. The legal title to the property is in the executors; and 3 
 they have it in possession. The statute makes it their duty to. 
 convert it into money, and execute the will according to law. 
 They must obey this mandate, unless restrained from ‘doing so by 
 a court of equity. No other court has any power to restrain 
 them. And the plaintiff cannot restrain them by her own mere 
 election ; for, except as legatee, they must ignore her existence. | 
 Besides, as before shown, she has no election. As matters now 
 stand, she is barred; and must continue to be barred, unless re- 
 lieved from her contract by your Honor’s decree. Hence she 
 comes into court to ask your assistance. She asks you to arrest 
 the administration of the estate, and make the executors yield to | 
 her their title and possession. She makes the legatees defend- 
 ants, and seeks a bar to their claims by a judgment of the court. 
 In order to effect this, she must first ask your Honor to set aside 
 her contract, and confer upon her rights that have now no exist- 
 ence; rights that, by reason of her covenant, have never attached. 
 That this is the case, I submit that I have shown; and being the 
 case, who is the actor? Who is it brings this cause into court ? 
 Who is it asks affirmative relief? Who is it needs the aid of the 
 chancellor ? 
 
 But, say her learned counsel, the plaintiff’s title is legal. Sup- 
 pose it were so, what of that? Can a court of law afford her the 
 relief she seeks? Can such a court stop the administration of | 
 the estate, take from the executors their title and possession, 
 compel by its judgment a transfer to her, or adjudicate the ques- 
 tions between her and the legatees? To say nothing of the ne- 
 cessity of annulling her contract, what court of law can do either 
 of these things? If she has a legal title, which I utterly deny— 
 if her covenant remains executory, which I have shown is not the 
 case —she still asks a chancellor to afford her relief, and to set 
 him in motion, she must have a ‘‘ conscientious” case. Whetker 
 she has such a case, I submit to your Honor. 
 
 A. G@. THURMAN, * : 
 Of Counsel for Defendants. 
 
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