UNITED STATES SUPREME COURT DECISIONS ON-LINE

Where a married woman has power, under a marriage settlement, to dispose of property settled upon her, by the execution of a power of appointment for that purpose, and alleges afterwards that she executed the power under undue marital influence and through fraud practiced upon her, but alleges no specific mode or act by which this undue marital influence was exerted, and the facts disclosed in the testimony go very far to contradict the allegation, the charge cannot be sustained.

Every feme covert is presumed, under such a settlement, to be, to some extent, a free agent.

Where the marriage settlement recited that the woman was possessed of a considerable real and personal estate, which it was agreed should be settled to her sole and separate use with power to dispose of the same by appointment or devise, and then directed that the trustee should permit her to have, receive, take, and enjoy all the interest, rents, and profits of the property to her own use, or to that of such persons as she might from time to time appoint during the coverture, or to such persons as she, by her last will and testament, might devise or will the same to, and in default of such appointment or devise, then the estate and premises aforesaid to go to those who might be entitled thereto by legal distribution -- this deed enabled her to convey the whole fee, under the power, and not merely the annual interest, rents, and profits.

Where the marriage settlement gave her the power of appointment to the use of such persons as she might from time to time appoint, during the coverture, by any writing or writings under her hand and seal, attested by three credible witnesses, and she executed a deed which recited that the parties had thereunto set their bands and seals, and which the witnesses attested as having been sealed and delivered, this was a sufficient execution of the power, although the witnesses did not attest the fact of her signing it.

The authorities upon this point examined. clubjuris

Page 49 U. S. 11

The facts of the case were these:

On 20 October, 1824, a marriage being about to take place between Joseph B. Ladd and Harriet V. Nicoll, both of the Town of Alexandria, the following marriage settlement was executed by those parties:

"This indenture tripartite, made this twentieth day of October, in the year of our Lord eighteen hundred and twenty-four, between Joseph B. Ladd, of the Town of Alexandria, of the first part, Harriet V. Nicoll, of the town aforesaid of the second part, and John H. Ladd, of the town aforesaid, of the third part. Whereas a marriage is shortly to be had and solemnized, between the said Joseph B. Ladd and Harriet V. Nicoll; and whereas the said Harriet V. Nicoll is now possessed of a considerable real and personal estate, which it has been agreed between her and the said Joseph B. Ladd should be settled to her sole and separate use, with power to dispose of the same, by appointment or devise; and whereas the said Joseph B. Ladd has agreed to add to the property of the said Harriet V. Nicoll one hundred and sixty-two shares of the Alexandria and Washington Turnpike Company, and the premises hereinafter described, now occupied by Dr. Vowell, which is likewise to be settled in manner aforesaid, with this understanding, that in case the said Harriet V. Nicoll should, after the intended marriage had, happen to survive the said Joseph B. Ladd, she shall not have or claim any part of the real or personal estate whereof the said Joseph B. Ladd should die seized or possessed, or entitled to, at any time during the coverture between them, by virtue of her dower, or title of dower at common law, or by virtue of her being administratrix, or entitled to the administration of the goods and chattels, rights and credits, of the said Joseph B. Ladd, or in any other manner whatever. Now this indenture witnesseth, that in pursuance of the agreement aforesaid, and of the sum of five dollars to him in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, the said Joseph B. Ladd hath given, granted, bargained, and sold, and by these presents doth give, grant, bargain, sell and convey, unto the said John H. Ladd, his heirs and assigns forever, a house and lot situated upon the north side of King Street, and to the westward of Pitt Street, in the said Town of Alexandria, and bounded as follows, to-wit:"

"Beginning upon King Street, four feet to the eastward of the center

Page 49 U. S. 12

of the square formed by Pitt and St. Asaph Streets, and running thence eastwardly with King Street, and bounding thereon twenty-three feet nine inches, be the same more or less; thence northwardly with a line parallel to Pitt and St. Asaph Streets, one hundred and nineteen feet; thence westwardly and parallel to King Street, the length of the first line; thence southwardly with a straight line to the beginning; also one hundred and sixty-two shares of Alexandria and Washington Turnpike Company; and the said Harriet V. Nicoll, in consideration of the agreement aforesaid, and of the sum of five dollars to her in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold and conveyed, and by these presents doth grant, bargain, sell, and convey, unto the said John H. Ladd, his heirs and assigns forever, the following property, to-wit: all that property situated on the east side of Union street, long known by the name of Conway's Wharf, with the warehouses, dwelling houses, docks, and appurtenances thereto belonging, as it was devised by the late Richard Conway to Joseph Conway, deceased, from whom it descended to the said Harriet V. Nicoll -- also, one lot of ground on the west side of Union street, purchased by the said Joseph Conway of Thomas Conway, by indenture, now of record, in the County of Alexandria; also, all right, title, interest, claim, or demand of the said Harriet V. Nicoll, under the will of her late husband, William H. Nicoll, of Northumberland County, Virginia, or that may have descended to her from her father, Joseph Conway, deceased, or from her mother, or from any other person. To have and to hold all and singular the property hereby conveyed unto him, the said John H. Ladd, his heirs, executors, administrators, and assigns, to his and their only use forever; upon such trusts, and for such uses, intents, and purposes, as are hereinafter mentioned; that is to say, in trust, for the use of the respective parties who have conveyed the same until the solemnization of the intended marriage, and from and after its solemnization, then upon the trust that the said John H. Ladd, his heirs, executors, and administrators, shall and do permit the said Harriet V. Nicoll, the intended wife, to have, receive, take, and enjoy, all the interest, rents, and profits of the property hereby conveyed to and for her own use and benefit, or to the use of such person or persons, and in such parts and proportions, as she, the said Harriet V. Nicoll, shall appoint from time to time, during the coverture, by any writing or writings under her hand and seal, attested by three credible witnesses, or to such person or

Page 49 U. S. 13

persons as she, by her last will and testament in writing, to be by her signed, sealed, published, and declared, in the presence of the like number of witnesses, may devise or will the same to; and in default of such appointment or devise, then the estate and premises aforesaid to go to those who may be entitled thereto by legal distribution; it being the intent of the parties that none of the property hereby conveyed shall be at the disposal of, or subject to, the control, debts, or engagements of the said Joseph B. Ladd."

"In testimony whereof, the said parties have hereunto set their hands and seals, the day and year first before written."

"JOSEPH B. LADD, [SEAL]"

"HARRIET V. NICOLL [SEAL]"

"JOHN H. LADD [SEAL]"

On 1 November, 1824, Joseph B. Ladd, in conformity with the above agreement, transferred to John H. Ladd, the trustee, one hundred and sixty-three shares in the Washington and Alexandria Turnpike Company, being one share more than he had stipulated to transfer.

On the 2 of January, 1827, Harriet V. Ladd, by writing under her hand and seal, executed in the presence of three witnesses, and reciting that it was in pursuance and in execution of the power reserved to her in her marriage settlement, directed the trustee to transfer and assign to John Hooff, cashier of the Farmers' Bank of Alexandria, one hundred and sixty-two shares of the aforesaid turnpike company, "forever thereafter to be and inure to the benefit of the said John Hooff."

On the same day, the trustee made the transfer, as directed.

In October, 1827, the following proceedings took place at the Farmers' Bank of Alexandria, and appear upon the minutes of the Directors.

"It is proposed to lend Joseph B. Ladd upon his note, endorsed by John H. Ladd, the sum of $7,000, provided the board shall be satisfied that the real security he may offer shall be good security for that sum -- decided in the affirmative."

"Oct. 9, 1827 -- The loan provisionally granted to Joseph B. Ladd on the 1st instant, being under consideration, a deed of trust to John Hooff, trustee, signed by John H. Ladd and Harriet V. Ladd, and dated the 9 October, 1827, containing a description of the property intended to be conveyed as collateral security for the said loan, having been laid before the board, read, and considered, and upon the question, Shall the said property be deemed good security for the said loan of $7,000? the vote was in the affirmative. "

Page 49 U. S. 14

"Resolved, therefore, that the loan of $7,000 be made to the said Joseph B. Ladd, upon the conditions contained in the said deed, and upon the further consideration that the said Joseph B. Ladd cause the property contained in the deed to be regularly insured, and the policies assigned over to the trustee, John Hooff; upon this resolution John C. Vowell, Reuben Johnston, John H. Ladd, and Samuel Messersmith, voted in the affirmative; in the negative, Rd. M. Scott."

The deed referred to in the above proceedings, reciting the marriage settlement, conveyed to Hooff all that part of the wharf called Conway's Wharf, lying on the east side of Union street, in the said Town of Alexandria, as the same was devised by the late Richard Conway to the said Joseph Conway, the father of the said Harriet, with all buildings &c., being the property described in, and conveyed by, the marriage, settlement, and then proceeded thus:

"And whereas the Farmers' Bank of Alexandria has agreed to loan to the said Joseph B. Ladd the sum of seven thousand dollars, or such part of that sum as he may require, on his notes, to be endorsed by the said John H. Ladd, and discounted at said bank, and to be renewed from time to time, under the endorsement of the said John H. Ladd, or of such other person or persons as the board of directors of said bank may from time to time approve of, according to the usages of said bank, on the following terms and conditions: that is to say, that the said loans and discounts, or interest to become due thereon, shall be secured by an effectual lien on the premises before described; that on the said notes being regularly renewed, and kept up, and on the said interest or discounts being punctually paid on such renewals, and on one thousand dollars of the principal being paid within two years from the date hereof, the said Joseph B. Ladd shall be allowed the further term of one year, that is to say, three years from the date hereof, for the payment of the residue of said loan, and if within the said third year the said Joseph B. Ladd, his executors or administrators, shall pay to the said bank the further sum of two thousand dollars, and shall pay and discharge the interest or discounts on the said notes as they shall be renewed, then that the time of the payment of the residue of said loan shall be extended one year further, that is to say, for the term of four years from the date hereof, he, the said Joseph, his executors or administrators, paying the interest or discounts on the said notes as they shall be renewed during the said fourth year; and if, within the said fourth year, the said Joseph shall pay the further sum of two thousand dollars of the principal of said debt, then that the time of the payment of the residue

Page 49 U. S. 15

of the said debt shall be extended one year further, that is to say, for the term of five years from the date hereof; the said Joseph, his executors or administrators, paying the discount or interest on the notes offered for renewal as the same shall be discounted."

The deed then directed that if the payments mentioned above were not made, Hooff was to sell the property,

"provided, however, that the same shall produce enough to pay and satisfy the whole amount of said loan which shall not be paid, with all discounts and interest which shall be due thereon, and all reasonable charges and expenses of sale."

It contained also this important declaration and condition:

"And the said Harriet V. Ladd, in execution of the power of appointment to her reserved as aforesaid, does hereby direct and appoint the premises herein described to be held by the said John Hooff and his heirs on the uses and for the purposes and trusts before recited."

This deed was signed and sealed by the parties thereto, with a memorandum underwritten in these words, in the usual place of attestation -- "Sealed and delivered in presence of George C. Kring, John McCobb, Matthias Snyder, Charles W. Muncaster, Jonathan Field" -- and bore the certificate of the clerk that it was proved as to John H. and Harriet V. Ladd, by three of the witnesses, acknowledged by the trustee, Hooff, and ordered to be recorded.

On 13 April, 1829, Hooff retransferred to John H. Ladd, the trustee, the one hundred and sixty-two shares of turnpike stock, which the trustee had transferred to him on 2 January, 1827.

On the 30 April, 1829, Harriet V. Ladd directed the trustee to transfer these shares to Sarah Ladd, which was accordingly done on the same day.

On the 21st of November, 1829, Sarah Ladd transferred eighty shares of this stock to the bank, and on the 6th of December following, the remaining eighty-two shares to Sarah Easton Ladd.

On 16 December, 1839, the following proceedings took place at the bank:

"Farmers' Bank of Alexandria, December 16, 1839"

"The president and cashier, having made arrangements for further security on the debt of Joseph B. Ladd to this bank, having laid the same before the board, it is ordered to be recorded as follows, viz., The Farmers' Bank of Alexandria, having this day received from Mrs. Sarah Ladd a transfer of eighty

Page 49 U. S. 16

shares of stock in the Washington and Alexandria Turnpike Company, as further security for the payment of Jos. B. Ladd's note, amount six thousand dollars, due the said bank and unpaid, with an understanding the stock is not to be sold in less than two years from this date, and then to be applied towards the payment of said note of six thousand dollars, but the said Mrs. Sarah Ladd may direct the payment of the proceeds of said stock at any time previous to the expiration of said term of two years at her pleasure, and then to be applied towards the payment of said note of Joseph B. Ladd, amount six thousand dollars."

"[Signed] JOHN C. VOWELL, President"

"Alexandria, November 21, 1839"

"Amended by introducing a clause that the bank shall not proceed against the property in deed of trust, Conway's Wharf, until two years from this date, and then stock to be sold, without Mrs. Sarah Ladd should prefer to pay for the stock at the par value."

"A copy JOHN HOOFF, Cashier"

On 27 July, 1842, Hooff advertised the real property conveyed to him for sale, and sold it on 7 September, for $4,175, to Benoni Wheat and John J. Wheat. Two days before the sale, Hooff by writing consulted Mrs. Ladd respecting the terms of sale, and the parcels in which the property should be sold, and received from her the writing returned endorsed in these words: -- "I agree to the above arrangement -- Harriet V. Ladd."

In February, 1843, Harriet V. Ladd, by her next friend, Montgomery D. Corse, filed her bill in the circuit court against her husband, the trustee, the bank, Hooff, and the Wheats.

The bill, after meeting the marriage settlement and the marriage, alleges that under said contract she had no power to convey or dispose of the property settled on her by way of anticipation or otherwise. Nor had she power to appoint the use of the income rents &c., to any person, for the debts or benefit of her said husband.

That she was induced by the marital influence of her husband, and with the knowledge and connivance of the said bank, to sign a deed of trust to John Hooff, to secure a debt of her husband endorsed by her trustee, which deed is witnessed by four persons in manner and form as shown by the exhibit of it.

That no power is given to the trustee to convey the property, nor could she authorize him, and that said deed of trust is clubjuris

Page 49 U. S. 17

null and void, and was obtained by marital influence and coercion, while living with her husband, and her husband did not join in said deed, nor was she separately examined to ascertain if she freely executed it &c., nor was authorized to execute said deed, without all the forms were complied with.

That she is falsely made in said deed to say that she had previously appointed under her power, when in fact she never had, and that her husband and trustee were acting for their own personal interest.

That said Hooff and said bank have caused the wharf lot to be sold to Benoni Wheat, who holds the same in possession as his property, and refuses to let your oratrix have the same.

That the said bank holds the shares of turnpike stock included in the settlement, as security for the money loaned to her husband.

That she was induced by marital influence to execute an instrument dated 30 April, 1829, as will be shown, directing her trustee to transfer 162 shares of turnpike stock to Mrs. Sarah Ladd, to secure $4,000 loaned by her (as guardian to Sarah Easton Ladd) to your orator's husband, and when the same should be paid to be retransferred to the use of your orator.

That a settlement having taken place by which Sarah Easton Ladd received 82 shares in full of her claim, the remaining 80 shares were on 21 November, 1829, transferred by Sarah Ladd to said bank, without any authority, and they were then the property of your oratrix, and not of Sarah Ladd, as the bank well knew.

That all the said writings, transfers, and doings in the premises were illegal, and in fraud of her rights secured to her by said marriage contract -- that all the aforesaid actings and doings in the premises, and every act and doing connected with the same, by the aforesaid Joseph B. Ladd, John H. Ladd, John Hooff, Benoni Wheat, and the said Farmers' Bank of Alexandria, were in violation of her rights, and done to defraud her of that property and those rights secured to her or intended so to be by the marriage contract aforesaid.

That the said deed to Hooff, and the pretended assignment of the turnpike stock, ought to be declared null and void as to your oratrix, and she ought to be restored to her property and rights, and quieted against all said parties, and that the dividends on said shares received by said bank for at least four years ought to be paid to her.

The bill then states the desertion of complainant by her husband. clubjuris

Page 49 U. S. 18

That the part of the property sold has not paid the debt, and it will take the residue of her property to pay it. It prays that the deed of indenture may be surrendered and cancelled, and that complainant may be quieted against all the defendants in her enjoyment of her said property; that the bank may assign the shares of turnpike stock, or in default pay the value thereof and all dividends received thereon, and it concludes with a prayer for general relief.

In June and July, 1843, Hooff, the Wheats, and the bank filed their answers. The husband and trustee did not answer the bill. This answer denied the complainant's construction of the marriage settlement, insisted upon the competency and regularity of the appointment, and of all the proceedings had in pursuance thereof, averred that the property could be applied to the payment of the debt due to the bank with her consent; that she was quoad the property a feme sole; that the loan was made to Joseph B. Ladd on his notes, endorsed by the trustee, and upon the security of the deed of trust; that the greater part of the money was expended upon the improvement of the property which belonged to her; that the complainant was privy and assented to the sale, and set forth the facts connected with the transfer of the turnpike stock, and denied all fraud or undue influence in bringing about any of the transactions between the parties.

To all these several answers there was a general replication and issue, and a commission was issued to take testimony, under which the facts above stated, and those hereinafter adverted to, were established in proof.

On 6 October, 1845, the cause came on for hearing, when the circuit court dismissed the bill, with costs. The complainant appealed to this Court. clubjuris

Page 49 U. S. 27