:—The bill in the original cause is filed by Mr. Cruger against his wife and her two brothers, who claimed to be trustees of her estate, for the purpose, in one aspect, of ridding the estate of the trust, in order that there may be no obstacle in the way of his asserting the common law rights of a husband to the property of his wife ; or, in case it shall turn out that there is a valid subsisting trust under which the property is held, then, that he may have the benefit of a deed of appointment executed by her under date of the 19th November, 1841, purporting to give him one-half of the net income of the whole estate real and personal during his natural life : and the bill calls upon the two brothers of his wife, either to yield the possession of the property to him to be managed as a husband is entitled by law to manage, possess and enjoy the property of his wife or else, in their capacity of trustees, to perform their duty in respect to the making of investments, the collection of rents and income, the paying of dividends and the rendering of proper accounts- or that they may be removed from the trust and other trustees appointed in their stead.
On the other side, the cross-bill, filed by Mrs. Cruger against her husband, has for its object—first, the establishment by decree of this court of a deed of settlement executed by him immediately after the solemnization of their marriage on the 29th of June 1833, by which she claims that the whole estate both real and personal became and was vested in trustees for her use and subject to her appointment and disposal as if she were unmarried and to be held and kept during the marriage entirely exempt from his control; and secondly, it seeks to annul and have de~ *506dared void all appointments and settlements of the income which she at any time may have made upon or in favor of her husband and especially the last act or deed of the kind executed by her under date of the 19th November, 1841, before mentioned.
This presents a very general view of the nature and object of the suit on both sides; and it will readily be perceived that this court can deal with the controversy only so far as property is concerned. Over the conduct and acts of the parties, except with reference to their respective rights of property and for the purpose of enforcing those rights when ascertained, this court can exercise no control. It has not jurisdiction to compel cohabitation where one party withdraws from the society of the other without justifiable cause nor to decree a restitution of conjugal rights withheld. Whether the decision I am about to make will have a tendency to produce such desirable results from any moral force or influence it may carry with it, I cannot undertake to predict; but I will indulge the hope, that the questions, which have so long agitated the minds of the parties, in relation to the property, being once settled by a definitive sen-tence or decree upon just and equitable principles, there will be nothing left to disturb the peace and harmony that always should subsist between intelligent, upright and virtuous minds and that they will see the importance of returning to those duties which the domestic relation requires and which, as enlightened members of a moral and Christian community, is demanded of them.
The first question to be considered is, on the validity and effect of the husband’s deed of the 29th day of June 1833, •as constituting a post-nuptial settlement of the property upon the wife ? The whole of the property belonged to her before the marriage and the absence of anything in the shape of a marriage settlement would leave him to enjoy the legal rights of a husband over her property which could not be disputed.
. Much, therefore, depends upon this instrument-; for, if it cannot be sustained of itself or as evidence of an ante-nuptial agreement which the court is bound to carry into effect, then, all the court has to do is to pronounce it a nullity and *507leave the husband in the possession of the rights conferred upon him by the marriage.
In the first place, the instrument is alleged to be void upon its face, for the reason that there is no consideration expressed.
The statute relative to fraudulent conveyances and contracts, 2 R. S. 134, 135, does indeed require that certain contracts or agreements, in order to be binding, must be in writing and must express the consideration and must be subscribed by the party or his agent. But, this provision of the statute has reference to executory contracts or agreements, such as rest in covenant or promise to do or perform some act in future and does not apply to contracts executed by the act or deed itself. This is manifest from another section of the same statute : “ No estate or interest in lands, (other than leases for a year) nor any trust or power over or concerning lands or in any manner relating thereto shall be created, granted, assigned, surrendered or declared, unless by act or operation of law or by a deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, &c.”
Here, no mention is made of a consideration expressed. In an instrument, therefore, which of itself creates and passes the estate, title or interest by words of grant, assignment, surrender or declaration of trust, it is not necessary that it should express the consideration on which it is founded. A consideration is implied from the fact of the party’s signing and sealing the instrument, and this is sufficient to support it as a deed until it is impeached or invalidated for some other cause. Now, the deed in question is not in terms executory or promissory. It is not a covenant or agreement to do something in future, but it is an act or deed by which all that was ever contemplated is done and accomplished at once. It speaks in the present, not in the future tense. It purports to divest the husband of all interest and right in his wife’s property which he had acquired at law by the marriage and to vest it in trustees for her separate use. The language of the deed is, that he thereby freely, fully and unreservedly releases and conveys all the estate "both, real and personal, of the wife which she *508then, owned or might afterwards acquire and all his right, title and interest therein, &c. It is, therefore, an executed, not an executory instrument and does not belong to that class of written instruments which are declared void by the statute of frauds for not expressing the consideration.
The next objection taken to this instrument is that, if not void for want of an express consideration, still, that it is void by the statute of uses and trusts, as containing a trust not sanctioned by that statute: 1R. S. 727, § 55. The trust as declared is that the trustees are “ to hold and keep both the principal and interest thereof (that is of the whole estate) during the said marriage exempt from his (the husband’s) debts, contracts or control; to be managed and disposed of on her separate orders or receipts or by her deeds or will, so that she may enjoy and dispose of the same as it came from her parents and sister or may hereafter in any manner accrue to her in all respects as if she were unmarried.” In the matter of time or duration the trust is not objectionable, for it is to continue only during the marriage of the parties and by no possibility can this extend beyond the life of the wife. The objection, however, rests upon a more formidable ground, viz.: that by the terms of the deed the trustees are not required to perform any active duties in the management of the estate or in the receipt of the rents and profits and the application of them to the use of the wife, but the wife herself, instead of being a mere recipient of passive party, is constituted the active party in the trust to manage the property in all respects as the legal owner. That such a mere nominal trust is contrary to the policy of the law and the spirit and intention of the statute is not now to be questioned. The final decision in the case of the -Lorillard Will and in other cases subsequently has settled that point. The question is, whether the trust here created or intended so to be is of that character 1 It must be admitted that the deed is informal and the trust inartificially expressed ; but it does not follow that it will be disregarded on that account as entirely ineffectual. This court looks at the substance rather than at the form of things and endeavors to ascertain the object and design of every deed or instrument brought before it. If the words used admit of dif*509ferent meanings, by one of which the instrument may be good and by another void, the duty of the court is to attach to them the meaning that will uphold rather than the one that will overthrow the deed. The words of strongest import against the validity of the trust in question are these: “To be managed or disposed of on her separate orders or receipts or by her deeds or will, so that she may enjoy the same in all respects as if she were unmarried”—carrying with them the appearance of an intention to place the whole property in her possession and to leave it to her management as well as to her ultimate disposal as though she were a feme solé and as though trustees were but nominal parties in the deed and had no duties to perform; but when these words are read in connection, as they must be, with those that precede them a different sense is conveyed. The words that precede are words of a lease and conveyance to third persons by name. They are sufficient to pass whatever legal interests or rights of property the husband had acquired in the estate of his wife by the marriage ; and the trustees became vested with those rights by the delivery and acceptance of the deed: Cunningham v. Freeborn, 11 Wend. 247, 248. From that moment their duty as trustees commenced. It was an active trust they were called upon to execute—a trust in the first place “ to hold and keep both principal and interest of the whole estate during the marriage exempt from the husband’s debts, contracts or control.” How could they hold and keep and protect the property and especially the income from the husband and against his creditors, without taking it into their own hands and under their control 1 To have it in the possession of the wife and under her management would be to leave it still in the husband’s possession and under his control. Her possession would, in legal contemplation, be his possession and the declared object of the deed might, therefore, be defeated. It must not be supposed that the parties intended such a result. On the contrary, it was as necessary to vest the trustees with the actual possession as with the legal title; and both being united in them the active management of the estate at once devolved on the trustees, one of whom (Mr. Halliday) immediately entered upon the du*510ties of the trust and did, in fact, take charge of and manage the estate.
So far, therefore, as respects the commencement of the trust clause in the deed, viz.: “ to hold and keep the property,” &c. for the purpose of protecting it against the acts of the husband himself, it appears to be free from the objection that no active duties on the part of the trustees were required.
Do the words then which immediately follow, “ to be managed and disposed of on her separate orders or receipts,” &c. take from it that character'? In my opinion they do not. It is very evident they were not intended to relieve the trustees of their duties and to convert them into mere automata or nominal parties to the trust. No such meaning ought to be given to the words and the whole taken together ought not to bear that construction. A more consistent and rational understanding of them is that they were meant to designate the" wife as the sole beneficiary of the trust—to point out very generally the manner by which she might receive and enjoy the benefit of the property free from his control, viz.: by orders on the trustees and receipts to them in her own name and by ultimately disposing of the estate as she might see fit. The latter is in the nature of a power of appointment to be exercised by deed or will.
Still, the question is not wholly disposed of; for, although one objection is removed, another remains. The trust as declared is not in the words of the statute, “ to receive the rents and profits and apply them to the use of the wife.” It has been held repeatedly not to be essential to the validity of the trust that it should be expressed in the very words of the statute. A deviation in the phraseology will not vitiate, provided the object of the statute is substantially complied with : Gott v. Cook, 7 Paige, 538, 539 ; and here I think there is a substantial compliance with the statute.
It follows, from the nature of the trust, that the trustees must receive the rents and profits. This, as already shown, is a part of the active duty belonging to the trustees to hold and keep both the principal and interest exempt from the husband’s debts, contracts or control; and when the money is paid over upon the wife’s separate orders or receipts, it *511is applied to her use within the meaning of the statute: Gott v. Cook, supra.
I have thus far considered the question on the law of trusts in relation to real estates; the statute of uses and trusts having reference solely to that species of property. But with regard to the personal property embraced by the same deed of settlement, it will be perceived that the trust is equally free from any well founded objection.
We have no statute declaring how or for what purposes personal property shall or may be placed in trust nor imposing any restriction upon trusts of personalty, except trusts of accumulation for the benefit of minors, which are to be limited to their respective minorities and all beyond that period are made void.
There is a statute, also, against suspending the absolute ownership of personal property beyond the period of two lives in being and, by which, moreover, limitations of future and contingent interests in personal property are subjected to the same rules as prescribed by another statute in relation to future estates in lands ; but none of these statutory provisions touch the deed in question. There is here no trust for the purpose of accumulation—nothing that operates as an undue suspension of the absolute ownership of property and no violation of the rules of law in regard to future or contingent estates.
If I am correct in holding this to be a valid deed of settlement upon its face and the trust, such as, upon, a fair construction, the law has not prohibited, then, it becomes unnecessary to determine whether there was or was not an agreement ante-nuptial on which it was founded. The parties are at issue on that point. The wife claims for the deed that it was executed in pursuance of a previous agreement or understanding which formed a condition on which she entered into the marriage compact; and' that, however informal or defective the instrument might prove to be, there being ample consideration in the fact of a previous agreement, this court will reform the deed if necessary and sustain and establish it as a valid settlement upon her.
On the other hand, the husband denies that any previous agreement existed for a settlement as a condition of the *512marriage or otherwise; and he asserts that the deed as executed and delivered was a voluntary offering on his part.
The proofs in the cause do not furnish direct and positive evidence of a previous agreement by which the property was to be settled upon the wife after the marriage. In all probability it was a point about which they had not specifically agreed, although a wife’s right to retain the control and exclusive ownership of her estate after marriage had been often and for a long time a subject of discussion between them. She had been taught to believe in the superiority of the wife’s right in that respect over the marital right which the common law confers upon the husband; and she appears to have adopted it as a fixed principle in relation to her property never to surrender the control and ownership of it to a husband any further than to allow him to enjoy the income with herself and to be a disbursing agent of it for their mutual benefit. To this, as a principle of her life, she has clung ever since the marriage, even at the sacrifice of her domestic peace and happiness. Still, I believe the marriage took place without having that point conceded to her, but, as I have no doubt, under the fullest persuasion in her own mind, that her husband, understanding as he did her sentiments upon the subject, would fulfil that expectation and relinquish the right which the law would give him over her property' and, that knowing her wishes and actuated by a desire to gratify them, he prepared the instrument beforehand and upon the solemnization of the marriage promptly and generously executed it, divesting himself of all right of property in her estate which he had hut that instant acquired. This view of the circumstances which led to the making of the deed and under which it was executed and placed in the hands of the trustees, tends to the removal of all conflict in the statements of the parties concerning it.
The next question, then, is upon the character of the order of Mrs. Cruger upon Halliday, the acting trustee and agent of the estate, under date of the 15th day of July, 1833, by which he was authorized to pay to Mr. Cruger the income of the estate as it should accrue. Was this a mere authority for him to receive the income as being still the *513money of the wife or is to be regarded as an appointment under the deed of settlement irrevocable in its nature and by which the income of the estate was given back to the husband as his own ? He claims for it the character of a gift to him of the whole income made in fulfilment of a verbal declaration of hers to that effect on the evening of the marriage, in consideration of having executed the deed of settlement. Her answer called for upon oath and responsive upon this point, denies that such was the origin and object of this order. She says that, feeling gratified by his conduct in executing the deed and having previously intended to allow him to enjoy the income of her property in case he should survive her, she called upon some of the persons present on the occasion of their marriage to witness her declaration, that if she should die before having an opportunity to make a will, it was her will that her husband should enjoy the income of her property during his life; and she positively denies that she made or intended to make, by that act or declaration, any other gift or disposition in favor of her husband than by a verbal or nuncupative will to take effect at her death in case he should survive her.
That the purport and design of her declaration so made was testamentary, is placed beyond all doubt by the concurring testimony of the Rev. Dr. Phillips, the Rev. Dr. Wainwright and Mr. Monroe. They prove that it was expressed as her “ will ” to take effect in the event of her death suddenly occuring before one in writing could be prepared.
Her husband had just parted with all his interest in her property and she wished to guard against a contingency by which he might be deprived .of all benefit from the income of the estate which she intended he should have during his life in the event of his surviving her. Such a disposition of the income would, of course, take effect only at her death; a thing very different from a gift or an intended gift to take effect or become absolute in her life time. She denies, moreover, in her answer, that the proposed nuncupative will had any connection with the subsequent giving of the order of the 15th of July or that the latter was in *514confirmation and fulfilment of the alleged gift of the income made by the former or intended thereby. I am bound to believe her statement in this particular, because it is responsive to a direct allegation of the bill and the denial is not disproved by any evidence in the cause.
The answer likewise explains the circumstances under which the order was made and states her reasons and motives- for it; all of which are perfectly in keeping with the idea of its being a mere matter of business arrangement between herself and husband and not a gift of the income to him. She appears to have been made aware of the embarrassment that might arise from her undertaking to make deposits in banks on her separate account and to draw checks in her own name ; and deeming it to be (as she very properly might) the more appropriate duty and business of her husband to look after her income and to attend to the disbursing of it in their personal and family expenses and being anxious, at the same time, to save his feelings from all seeming distrust and to show how unbounded was her confidence in him, she subscribed the order in the very significant and feeling manner expressed upon its face.
Some effort has been made to support the husband’s claim under the order as a purchase of the income founded on the consideration of his relinquishing a lucrative profession on entering into the marriage; and, on the other hand, numerous facts and circumstances have been adduced in argument to prove that no such idea could have existed at the time nor for a long time afterwards, even in the mind of the husband himself; and that his letters on various occasions and his acts and proceedings during a series of years are opposed to any such construction being given to the transaction.
There is much force in the argument drawn from these sources, but it is unnecessary to dwell upon them here. An attentive consideration of all the circumstances has satisfied me that the order of the 15th day of July, 1833, was not given as an irrevocable appointment of the income to the husband in effect restoring to him his marital right in the property and that such is not the true character and was not the intention of it.
*515Thus far, then, we find that, by the husband’s deed of settlement, the whole property, capital and income, was secured to the wife ; and by her order a stewardship was created in the husband over the income, which involved in itself the duty of keeping accounts. This duty, in fact, he undertook to perform; but it appears soon to have become irksome to him.
At the second anniversary of their marriage the discovery was made that the sums drawn from the trustees and expended had exceeded the income. This circumstance and the trouble of keeping minute accounts led to dissatisfaction and produced some difficulty. It was a cardinal rule with her not to allow the capital of her estate to be encroached upon or diminished ; and although the husband immediately upon its being discovered made good the deficiency out of his own resources, it showed the necessity of more economy and a closer attention to the keeping of accounts. The latter duty had a tendency rather to increase than to remove the cause of his discontent. This is shown by his handing back to her the order, with liberty to her to revoke it if she pleased. She, however, did not revoke it, but addressed to him a note under date of 29 th of June, 1835, by which she proposed to relieve him in some measure from the trouble of keeping minute or detailed accounts and to allow him to retain a specified part of the income for his own sole use and without any accountability to her for it.
The terms thus proposed she offered to confirm by orders or directions to her trustees. All this was done as she says—and she speaks responsively—not for the purpose of creating an irrevocability about her former order, but to lessen his dissatisfaction and to silence his remonstrances about keeping full and particular accounts and to render the manner of receiving and disbursing her income more agreeable to him. I do not see, therefore, that the rights of the parties, as they existed previously, were materially changed by this act of hers of the 29th of June, 1835.
The original order which he offered to surrender appears to have found its way back into his hands and all things went on harmoniously between them until another year *516had elapsed. At this time (towards the last of July, 1836) fresh difficulties arose. For causes either real or imaginary, which she has set out in her answer, she withdrew the agency of the estate from Mr. Halliday, the acting trustee, and took from him the duplicate of the order of the 15th of July, 1833, which had been deposited with him and appointed Mr. Brown agent of the estate in the place of Halliday ; and this change was made without previously notifying her husband of what she was about to do. Of course it was a surprise upon him and he became greatly excited by it, so much so that he left their residence and took lodgings elsewhere. Then, for the first time, the question seems to have come under discussion between them, whether the order she had recalled was revocable or irrevocable ; and it resulted, after a few days separation, in his writing a note addressed to Mr. Halliday and Mr. Monroe as trustees of the estate, dated 8th of August, 1836, in which she says that under Mrs. Cruger’s assurance that she did not intend the order for the payment of the income to him to be irrevocable, he, of course, had not the right to have it so considered. This removed at once all cause for his separating from her and he accordingly returned, having determined to meet her, as expressed in a letter to her at the time, upon her own terms, viz: “ trust in her confidence, affection, honor and generosity.” After this reconciliation the parties spent a part of the autumn of that year (1836) together at Henderson, their country residence, in Herkimer County, from whence they returned to the city some time in November.
The subject of this dependent condition was now again renewed as a matter of discussion between them attended by importunity and a course of conduct towards her (of which she complains) in order to induce her to make some settlement of income upon him by which he might be relieved from the state of dependence and uncertainty in which he was placed. With a view to some arrangement to that effect, the friendly offices of Mr. Bard and Captain Whetten were accepted as arbitrators and their opinions and advice as to the basis of a settlement dividing the income were given, but without effect. Nothing came of it or of certain papers which he caused to be prepared about *517the same time and requested her to unite with him in executing, but which she refused to execute. Comparative peace and quietude, nevertheless, appears to have been restored to the minds of the parties at that period by a solemn declaration which she made in writing addressed to her sister Mrs. Monroe, under date of November 30,1836. This paper embraced the most important points in the controversy between them. Mrs. Monroe gave it her sanction and approval Dec. 20, 1836, in these words: “ I truly believe my sister in the declarations made in this letter and that she will strictly adhere to them throughout her life.” Captain Whetten, also, expressed in writing his entire confidence in them,
From this time until the autumn of 1839, a period of about three years, the parties appear to have lived happily together, nothing having occurred to disturb the harmony between them. A portion of the years 1838 and 1839 was spent in Europe. On their return home they went to Henderson and passed the summer of 1839 at that place. In autumn, on coming to town, a difficulty again arose about the income in consequence of the dishonor of a draft which he had drawn on Brown, the agent, for money to pay debts or expenses'incurred at Henderson, she having given some instructions to the agent which the agent supposed forbade his acceptance of the draft, though the draft was very soon afterwards accepted and paid. This circumstance induced a renewal of the importunities and demands upon her for a settlement which should place something irrevocable at the disposal of her husband. She was urged to this by her brother-in-law Mr. Monroe and she finally yielded so far as to sign an instrument addressed to Mr. Monroe dated 26th October 1839, by which she declared that her husband’s power to draw the whole income as it accrued during his life should be deemed irrevocable ; and this was followed up by executing a deed of the 2d of November 1839, which purported to settle upon her husband the whole income of the estate, real and personal, during his life, excepting the share which belonged to her of her deceased mother’s and sister’s estate. Upon this being done, the husband executed a deed of appointment on his part dated the 5th of the same month, referring to her *518deed of the 2d, by which h.e directed the trustees to pay to her so much of the income as would, with what she had reserve¿ herself, constitute one half of the whole income of the estate.
These instruments however proved entirely unavailing. She had intimated, at the time of executing the deed on her part, that her husband’s acceptance of it would be the means of separating her from him. The declaration was made in pursuance of. a determination long previously formed and never meant to be departed from, that if constrained to give him an irrevocable power over the income, she would not live with him while he held it. The prediction was verified, for on his coming to town, after exchanging the papers, he found that she had left their home and had gone to her brother’s and that she refused to return and live with him so long as he retained the deed and claimed any rights under it.
This state of things continued until the 22d of February 1840 when he, being at Washington, endorsed upon the deed a surrender and cancellation of it and sent it to her. From Washington he proceeded to Charleston, South Carolina, where he remained until the following June. He then came back to New York and found she had gone to Henderson where she remained apart from him all the summer.
Now again the friendly advice of Mr. Bard was offered in a letter addressed to her expressive of much good feeling and concern for the happiness and honor of both and strongly urging her, for both their sakes, to make a settlement of some portion of the income upon her husband that should be permanent and irrevocable. She promptly replied to Mr. Bard’s letter, placing at his disposal the whole of her then income so that he might decide what portion of it should be assigned irrevocably to Mr. Cruger and, after he had decided, then authorizing him to have the proper instrument prepared and forwarded to her for execution.
A deed of the 7th of September 1840 was accordingly prepared and sent to her which she executed and returned to Mr. Bard and the same was thereupon delivered to her husband. By this deed she assigned to him out of her income an annuity of three thousand dollars, to be paid to him dur*519ing his natural life. Notwithstanding this deed had all the appearance of being a perfectly free and voluntary act on her part and, as he says, was intended as an adjustment of all difficulties between them and to bring them together again, yet it would seem from her statements that she executed it without any view to cohabitation and that she still meant not to depart from her purpose of living separate provided he accepted the deed and should undertake to claim an irrevocable power over even so much of the income.
If such was her resolution at that time it is certain, however, that she did not long adhere to it. On his proceeding to Henderson soon after receiving the deed, she became reconciled and they were again united, so that in November following they came to town and took up their residence for the winter at her house 55 Broadway, where they continued to reside in external harmony until some time in June 1841.
Then it was that she again separated from him and they have not since resided together. The immediate cause of this their last separation does not very distinctly appear. A variety of circumstances may have contributed to it. Mrs. Monroe, who was present when she left, says it was owing to some misunderstanding about money matters—that neither she nor Mr. Cruger seemed to understand each other’s views on money matters—that Mr. Cruger expressed his disapprobation of her going—opposed her going—but nevertheless handed her to her carriage.
But it is not very important at present to ascertain more particularly the cause. I only advert to the fact of their separation in connection with other prominent matters that have occurred since 1835 in relation to the husband’s acquiring an interest in or a control over the income of her estate in order to come at that part of the case which I am now about to consider and upon which the right and claim of the husband to any interest or ownership in the property entirely depends. I refer to her deed of appointment of the 19th of November 1841, the last she ever executed and by which, according to its purport, she irrevocably assigns, transfers and appoints to her husband, in pursuance of the power contained in her post-nuptial settlement with him (meaning his deed of the 29th of June 1833) the one equal half part of the net income *520of all her estate, real and personal, for and during the rest of his natural life from and after the first day of November then instant and directs the trustees of her estate to pay to her husband such moiety of the income accordingly, declaring the provision thereby made to be in lieu of the annuity of three thousand dollars. This deed is a matter of vital importance to the husband provided I am correct in my views as to the validity of the original deed of settlement and as to the effect of the order of the 15th of July 1833.
If found to be a valid instrument, both on the law and the facts of the case, then he is entitled to the aid of the court in carrying its provisions into effect. But, should it fail of support, so necessary to its validity, then there is nothing left for the husband to fall back upon within the province or jurisdiction of this court to enforce, unless indeed the court can reinstate the annuity which was surrendered when the deed in question was delivered; the grant of which annuity however is now as strongly impugned as is the deed which succeeded it. The form of this last instrument, as a deed of appointment, is not objected to, but it is insisted, in the first place, that she had not the capacity, legally, to make such a deed or any other instrument purporting to convey or to dispose of the income. The power as expressed in and intended to be conferred by the husband’s original deed of settlement is broad enough to authorize her to dispose of the income as well as the principal either by deed or will and it is that sort of power which a married woman, notwithstanding coverture, is expressly authorized by the statute of powers to execute by herself without the presence or concurrence of her husband: 1 R L. 735, sec. 110 ; Ib. 737, sec. 130.
But the objection lies deeper. It is based upon the disabling or prohibiting language of the 63d section of the statute of uses and trusts which, it is contended, renders her legally incompetent thus to part with or dispose of her income.
That section does indeed declare that “no person, beneficially interested in a trust for the receipt of the rents and profits of land, can assign or in any manner dispose of such interest;” though, where a trust for the payment of a sum *521in gross is created, the right and interest of a beneficiary may be assigned.
This provision of the statute applies only to rents and profits or to sums in gross payable out of real estate, although, by a subsequent statutory provision, the income of personal property is placed on a similar footing and subjected to the like rules : Clute v. Bool, 8 Paige, 85.
The question is, therefore, presented, whether the deed in question is such an assignment or disposition of the income as the 63d section has prohibited and rendered nugatory ?
The law having authorized the creation of trusts and especially trusts for the purposes specified in the 3d and 4th subdivisions of sec. 55, it became necessary to throw around them some guard against an improvident disposition which the beneficiaries of such trusts might be tempted to make of what was intended for their continuous support and to meet their constantly accruing and future wants, such beneficiaries being generally persons of improvident habits or under some condition of helplessness or dependence ; and, hence, the 63d section was enacted. It was probabl y intended moreover to support and give effect to the clause against anticipation, commonly introduced into deeds and wills, creating settlements for the separate use of married women, as to the effect of which clause nice and difficult questions were liable frequently to arise. See Kent’s Com. 5th ed. and Tullett v. Armstrong, 1 Beavan’s Rep. 1.
No such clause appears however in the deed in the present case; and the other branch of the mischief, which it was the policy of the 63d section to guard against, seems to be equally inapplicable and foreign to the present purpose. The effect of the deed, appointing one half of the net income of the husband, is not to break up the trust: for the object of the trust is not thereby essentially or materially changed. The trust is still to endure. The trustees are to go on receiving the rents and income and making the application thereof in moities according to the direction she has given and the appointment she has made—all of which is in conformity with the power conferred on her.
This is very different from a sale of her interest under the trust. It is not a parting with the continuous and constantly *522accruing benefit it was intended to be to her, for a benefit in gross or an anticipation of all the benefit of the trust and a termination of it, so far as she is concerned.
The opinion expressed by the chancellor in Gott v. Cook, 7 Paige, 538 and by Mr. J. Co wen in S. C. in error, 24 Wend. 667, appears to me to favor the distinction which I make between putting an end to the original beneficiary’s interest under the trust, thereby virtually defeating the object of it, and the doing of that which is only an appropriation of the benefits resulting from it in a manner compatible with its object and its creation. I think the latter is the sense in which this deed is to be regarded; and, consequently, that it does not fall within the prohibition of the 63d section.
The other objections taken to the deed depend on the circumstances under which Mrs. Cruger was induced to execute it.
She states in her answer (and in her cross bill the charges are substantially repeated) that having returned to the city, on the 18th of October 1841 from her country residence, she went immediately to the house of her cousin, Mrs. Kane, where she met Mr. Cruger and had a very painful interview with him. That at that time, as she believes, he had made up his mind to live apart from her and to obtain as large a grant as practicable of her income and for this purpose he engaged the services of Mr.. Monroe, her brother-in-law. That Mr. Monroe, accordingly, alone or conjointly with Mr. Cruger, instructed Mrs. Monroe, her only surviving sister, to procure from her an appointment of one half of the income to the use of Mr. Cruger. That all the acts and proceedings of Mr. Monroe to accomplish that object were guided by Mr. Cruger, either directly or indirectly through the agency of Mr. Monroe. At the same time, by some indirect means, Mr. Cruger procured Mrs. Kane and Mr. Ogden to aid and assist him in his designs upon the income. That Mrs. Monroe, aided and seconded by Mrs. Kane and Mr. Ogden, addressed her and requested that she would settle upon Mr. Cruger one half of the income of her estate. To this she replied that, by virtue of an offer made in June previously through her counsel Mr. Strong and still subsisting, Mr. Cruger had the liberty to take nearly the whole of the *523income and it was, therefore, unnecessary to apply to her for a smaller sum. (The offer in June alluded to involved a condition that, if accepted, she would live separate from him and had, therefore, been rejected.) That her sister, Mrs. Monroe, treated such reply with ridicule and derision, stating that she had no right to give the whole but was bound, in order to save herself from general censure, to give one half. That Mrs. Monroe, so aided and seconded by Mrs. Kane and Mr. Ogden, pursued the application for a settlement of one half of the income upon Mr. Cruger so unceasingly and in so harassing and importunate a manner as to leave her no peace or quiet. That she resisted the importunities of her sister to the utmost of her ability; but at length her powers of resistance wholly failed her and she yielded to the requisition of her sister and directed her counsel (Mr. Strong) to draw the required settlement She further says that Mr. Strong accordingly drew up an instrument bearing date the 26th of October 1841, purporting to settle one half of the income upon Mr. Cruger for her life, instead of his life, which she executed, but which he refused to accept or receive.
That in this stage of the controversy she was again addressed by her sister, aided by her cousin and Mr. Ogden— that she was charged with duplicity in giving private instructions to her counsel to draw the instrument in such unsatisfactory form and was censured for unreasonable obstinacy and threatened with public odium; and with renewed and continual importunities, she was at last compelled in order to secure her tranquillity, to agree to make the settlement upon her husband of one half of the income during his life. That having so yielded, she sent for Mr. Strong and caused instructions to be given to him to prepare the deed of settlement accordingly. That the draft was prepared and submitted to Mr. Cruger, who instead of acquiescing in it, proposed a different deed of settlement, but on being informed that his proposed deed would not be executed, he finally, after considerable hesitation and on or about the 17th of November, signified to Mr. Strong that he would accept as satisfactory the deed prepared by him ; whereupon it was engrossed and she executed and acknowledged it under date *524of the 19th of November 1841 and sent it to Mr. Strong who delivered it to Mr. Cruger.
She then denies that Mrs. Monroe. Mrs. Kane and Mr. Ogden or either of them had any right to suppose that the deed could or would form a basis just, reputable or otherwise of a re-union between herself and her husband ; on the contrary she says it necessarily formed a cause of continued separation, inasmuch as she had, uniformly declared that she could not live with her husband so long as he persevered in possessing himself of a legal right to any part of the income of her estate.
That in the summer previous he had declined to receive a settlement on the condition that she was to live apart from him and yet in order to secure the co-operation of her sister, and cousin and to avoid the odium of accepting a settlement on such disreputable terms he held out to her sister and cousin the idea that such settlement when made would satisfy his mind, restore harmony and thus lead to a re-union between them; at. the same time he well knew that she had determined not to live with him under such circumstances.
She then says that the deed was not a free and voluntary act on her part—that it was obtained in opposition to her will and by the persevering and vexatious importunities of her husband and his agents—that it was obtained fraudulently against good faith and contrary to the true intent and meaning of what she claims to have been an ante-nuptial agreement and the hus'band’s deed of 29th of June 1833. That although no physical force was employed to compel her to execute the instrument and admitting, as she does, that at the time of executing it she was under no personal restraint or duress and that she executed and acknowledged it with all the form and ceremony of a free and voluntary act, yet she says it was by undue persuasion and coercion growing out of his importunities and persecution of her for years and his threats that he would continue to destroy all her peace, comfort and happiness until she made such a settlement of her estate upon him as he should be content to accept, that she was brought to execute it.
Such are alleged to have been the means resorted to and practised upon her to obtain the deed. If true, there can be *525no doubt as to the duty of this court in regard to the transaction. The deed could not be allowed to stand, much less would the court lend its aid in carrying it into effect. And here I may remark that much of what is thus alleged against the morale of the deed is either in denial of or responsive to statements put forth in the original bill calling for an answer under oath. The burthen of disproving these denials and responsive assertions therefore rests upon the husband and to this end he has called upon Mr. and Mrs. Monroe and Mr. Ogden for their testimony respecting the part taken by them as well as by Mr. Cruger himself in bringing about this arrangement and deed of settlement. Although these three witnesses are the persons chiefly implicated as conspiring with Mr. Cruger in this business, yet they are competent to testify and their testimony must be believed unless there is other evidence to refute their statements or upon the face of their own testimony it shall appear to be incredible.
Both Mr. and Mrs. Monroe freely admit in the course of a long and searching examination that often and on various occasions during a series of years prior to' the separation of the parties in June 1841, they did interfere and by their advice and influence endeavored to prevail on Mrs. Cruger to make a permanent and irrevocable settlement upon Mr. Cruger of some large portion of the income of her estate. That this they urged upon her frequently when the subject of her income became a matter of discussion and controversy between them so as to threaten the loss of her domestic peace and happiness and to become painful to the feelings of those so nearly and dearly connected with her as were Mr. and Mrs. Monroe and family—that this was done both verbally and by written communications in the most urgent and persuasive manner, but was always most kindly meant, from a belief that her own happiness would be promoted by it and from a wish to see her placed upon high ground with respect to her husband and the opinion of the world.
When Mrs. Cruger came to town in October 1841 and did not go to reside with her husband at 55 Broadway, where he then was, these efforts were renewed by Mr. and Mrs. Monroe and particularly by the latter, in the hope of indue*526ing Mrs. Cruger to make the settlement and return to and reside with her husband and thereby conform to the wishes of her best friends. Mrs. Monroe is asked upon her cross examination to give the substance of the conversation which it appears she had with Mrs. Cruger on that subject two or three times shortly after she came to town, partly at' Mr. Monroe’s house, 30 Yarick street, at one of which she thinks Mr. Cruger was present and also Mrs. Kane and at another Mr. Ogden and Mrs. Kane were present. She says the conversations were not very long, at least not all of them. She did earnestly entreat her sister to make the deed and place herself on high ground. It was her sister she thought of, to make right. The conversation most deeply impressed on her mind was one held in Mrs. Kane’s house, when she said, i: My sister, only do right; put yourself on high ground and divide your income with Henry, giving him half that you cannot take back; then try and if you are not happy with Henry and be not contented I will give him up and go to you.” In answer to a further interrogatory she says she expressed herself to this effect: “ Mrs. Kane, Mr. Ogden and Mr. Whetten, every one of us that loves you, wishes you, Harriet, to do this—do, Harriet, for all our sakes.” She further says—“I did not say to her, ‘You cannot maintain your own respectability or that of your relatives without making it;’ I had no view but for my sister. I urged her from the bottom of my heart to do what I asked of her. I used no argument but affection.” In relation to the charge that these efforts of Mrs. Monroe’s to procure a deed from her sister were stimulated by Mr. Cruger through the instrumentality or agency of Mr. Monroe, who instructed, guided or directed his wife’s movements in that respect, Mr. Monroe expressly declares that Mr. Cruger never at any time engaged his services or secured his agency to obtain for him half of the income of Mrs. Cruger’s estate or that he alone conjointly with Mr. Cruger ever instructed or directed Mrs. Monroe to procure from her sister such a grant. He says, that at no time whatever did anything pass between himself and Mr. Cruger on the subject, except when he spoke to Mr. Cruger about having some arrangement made that should be definite and unchangeable respecting the income— *527at which times Mr. Cruger declared himself disposed to leave the whole matter to Mrs. Cruger and her friends. He says, moreover, that in the frequent conversations between himself and Mrs. Monroe he found that their views corresponded in relation to Mrs. Cruger ; and that he never did advise Mrs. Monroe to use her influence and power of persuasion with Mrs. Cruger to effect any object with her; that Mrs. Monroe would attempt nothing of that sort which was not in accordance with her own views and her own feelings of affection towards her sister; that whatever he, Mr. Monroe, had done towards influencing or persuading Mrs. Cruger into a settlement, xvas done out of regard for her and her happiness; and most generally without the knoxvledge or concurrence of Mr. Cruger, except that Mr. Cruger had always declared that he would cheerfully concur in anything her friends might decide upon.
It is unnecessary for the present purpose to go more at length into the testimony of these txvo witnesses. What I have thus stated comprises the substance of all that I deem material to show the character and kind of influence which they appear to have exerted with Mr. Cruger in producing the result complained of by her.
The testimony of Mr. Ogden in regard to the character of his interference and advice is not very different. He, it appears, was an old and intimate friend of the Douglas family. One who could have had no motive for advising Mrs. Cruger in any thing except that xvhich he honestly and sincerely believed to be right and promotive of her happiness and welfare. He was in New York during the whole of October and as late as the 10th of November 1841—on which day he embarked for England. In October and at least a fortnight before he sailed, he met Mrs. Cruger at Mrs. Kane’s in Varick street. Mrs. Monroe was also there. He had taken leave of the ladies. Mrs. Cruger followed him to the door and as he was on the steps going away she urged him to return and converse with her on the subject of her existing difficulties with her husband and to give her advice. At her pressing solicitation, resisting it, however, for some time, he agreed to listen to her story and did return into the house and had a long conversation with her. Mrs. Kane and Mrs. *528Monroe were present. The conversation most to the point, he says, was her declaration that she had always intended to settle the whole of her income upon her husband, revocable at her pleasure. He, Mr. Ogden, gave it as his opinion that a certain part of her income or a certain sum should in justice be settled on her husband during his life. After a • great deal had been said, she agreed that the settlement should be of one half of her income and solemnly declared that she would carry it into effect. She said, “ Mr. Ogden, I will sit down this very night and write orders to my solicitor to do so.” He told her such haste was unnecessary, that to-morrow or the next day, after she had reflected on it, would answer the purpose. “ I repeatedly told her,” (he continues) “ that my only cause for giving her this advice was my friendship to her and to set her right before the world. I told her that I frequently had heard it the subject of conversation and that she was blamed for the conduct she had pursued. We parted on this occasion on the most friendly terms.”
He further says, on his cross-examination, that in the course of the conversation he told Mrs. Cruger that he was speaking to her as her friend and not as the advocate of Mr. Cruger, in whom he felt no comparative interest; that the advice he gave her was from a conviction in his own mind that it was right and that he gave it to her that she should be enabled to take a high stand before the world. In answer to the question, “Did you at that time advise that the settlement should be for his (Mr. Cruger’s) life ?” He says, “ I did most distinctly and he was led to do so from a belief that no permanent amicable adjustment could be made which rested on the sole will or caprice of the party making the settlement.
It was in pursuance of this advice that Mrs. Cruger gave directions to Mr. Strong, her solicitor, to prepare the deed which was drawn and signed by her under date of the 26th of October 1841, purporting to be for her own life and which was rejected. Afterwards and on the 8th or 9th of November, Mr. Ogden had another interview with Mrs. Cruger at her brother’s (Mr. William Douglas’) house in Park Place. He there entered into a further conversation with her in which *529he told her that he had understood a deed had been made out in favor of Mr. Cruger during her life and inquired whether she understood that to be the meaning of the advice he had given her. She replied that, in the directions to her solicitor, she had not ordered him to make out the papers in that way. He then remarked, in that case the solicitor was unworthy of her confidence, as he had presumed to make a change in her intentions. She persisted, however, that the papers should continue as they were drawn. On that account the conversation became an animated one. Mrs. Cruger was greatly excited, walked the room and expressed herself very strongly and in terms highly derogatory to the character of her brother-in-law, Mr. Monroe. To which the witness replied with some warmth, though in other respects, he says, he spoke plainly in the language of truth without passion or feeling. In reply to her exclamation that “ all the world had turned against her and that I even had joined her enemies,” he said, “ No, Mrs. Cruger, you are your own worst enemy,—if any friend, however dear to you, ventures to differ in one single point from your opinion, you set them down at once as an enemy.”
The witness says further, it was an angry conversation towards the close of it. It can hardly be said to have terminated amicably, for she persisted in her intentions and he had his views on the subject which were opposite to those entertained by her. Up to the time he parted with her, he understood that she did not yield her assent to making the settlement for his (Mr. Cruger’s) life. Her brother, William Douglas, and Miss Bleecker were present during the conversation, but took no part in it of any moment.
With regard to the last interview, it appears to have been brought about solely at the instance and upon the invitation of Mrs. Cruger. Mr. Ogden did not seek it nor does it appear that Mrs. Kane, Mrs. Monroe or Mr. Cruger were at all privy to it. Mr. Ogden had shortly before heard, through Mrs. Kane or Mrs. Monroe or both of them (between the 1st and 8th of November) of the making and tender of the deed of the 26th of October and had expressed his astonishment at its being limited to her life, but has no recollection of having seen or conversed with Mr. Cruger on the subject be*530tween the time of the first and last conversations with Mrs. Cruger or of having seen Mr. Cruger and Mrs. Monroe together during that interval.
it appears moreover from his testimony, that in the summer of the preceding year (1840) he, Mr. Ogden, had visited Mrs. Cruger at Henderson upon her invitation an d there the subject of a settlement and adjustment of the difficulties with her husband were discussed; and at which time he had very frankly expressed his opinion in favor of a settlement of a part of her income upon her husband that should be irrevocable as the only means of reconciling them and of enabling them to live amicably together and had advised her against making a settlement of the whole income during her pleasure as she repeatedly said it was her intention to do. To the question, “ Did Mr. Cruger at any time request you to exert any influence with Mrs. Cruger on the subject of those difficulties ?” The witness answers, “ Never! It was at the solicitation of Mrs. Cruger alone and as her friend that I gave the advice.” The question thus put and answered relates to every instance in which Mr. Ogden conversed with Mrs. Cruger and gave advice in relation to her difficulties and the best mode of settling and avoiding them in future. So far as he was instrumental in the matter and so far as his advice or opinions may have influenced her to make a settlement of one half of her income and to make that settlement irrevocable and that too for her husband’s life instead of her own, Mr. Ogden certainly exculpates Mr. Cruger entirely from all agency in bringing that influence to bear on her mind. The same may be affirmed of the testimony of Mr. and Mrs. Monroe in respect to the part which they took either conjointly or separately to induce Mrs. Cruger to make such a settlement. Neither of the three acted with any view to serve any mere selfish purposes of Mr. Cruger by procuring for him one half of the income of the estate. It is impossible to believe that they who stood in the relation that these parties did to Mrs. Cruger, including Mrs. Kane her intimate friend and near relative, could have been actuated by such a motive even if they had not told us of higher and nobler motives of action proceeding from feelings of friendship and affection towards *531Mrs. Cruger and from a desire to serve her in that which would contribute most to her welfare, her own domestic peace and happiness and secure to her the high stand which she had all along occupied in society and before the world and in the estimation of her numerous friends. To this end and from such motives they were induced to exert their influence and to persuade Mrs. Cruger to make such a deed of settlement as she finally executed. In so doing they appear to have been governed by considerations altogether personal to Mrs. Cruger, intending to benefit her, though at the same time it could not fail to benefit her husband; yet he was not nor were his interests the object of their solicitude. He was but a passive party, ready to abide by whatever should be done by her that her friends might sanction and approve.
It is true he was so far active as to reject the deed of the 26th of October, but that was because it was not in accordance with the agreement and the solemn promise she had made. It is true, moreover, that he proposed the form or draft of a deed such as he understood had been determined upon, but finding her unwilling to execute any other than her solicitor should prepare, he yielded and accepted the deed of the 19th of November. Under these circumstances can it be said that Mr. Cruger succeeded in obtaining it by undue means 1 That he took no active measures to obtain it seems to me abundantly proved; and the leading charge of the answer, that he enlisted her friends in his service, prevailed on them to interfere and exert their influence and, finally, through their instrumentality guiding and directing their movements, succeeded in bringing about the result, so far from being supported by any evidence is, in my judgment, completely disproved, not only by the positive testimony which I have quoted but by strong presumptive evidence which the circumstances of the case, the relations which the parties implicated stood in towards Mrs. Cruger and their highly respectable and honorable characters unquestionably furnish. There is no ground, therefore, for imputing to Mr. Cruger the exercise of any undue influence, coercion or misconduct in obtaining the deed, either by himself or through the medium of other persons instigated by him or whose ofliciousness he had secured.
*532The question still remains, however, whether executing the deed under the advice and pressing solicitations of her friendS; urged upon her in the manner they have described and from motives like those before mentioned, she is at liberty to retract and avoid it?
In looking at the transaction with a view to this question it must not be forgotten that there was a dispute mainly attributable to the want of a formal and permanent marriage settlement. This dispute had before produced temporary separations; and now again it had resulted in a separation which threatened to be more lasting and in which the wife herself had chosen to be the party to leave her house and to keep herself aloof from her husband, he remaining ready to, receive her whenever she might return. In the hope of bringing about a re-union and restoring harmony, her near relatives and other intimate and personal friends interpose their kind advice or she seeks advice from them. Their advice she determines to be governed by. She nevertheless waivers and at length recedes. Her friends chide and entreat and importune until she is brought back to her first resolve. She then executes the deed and acknowledges it in a deliberate manner before a proper officer and in the presence of a brother, who must have known most, if not all, of the circumstances which led to it; and he and a sister-in-law sanction the act by their subscription as witnesses. Her husband was not present to overawe her. Her importunate friends were not there surrounding her—one of whom was on his way to England. At that time she was free to act as she pleased; unconstrained, except so far as she may have felt bound in honor and conscience to fulfil the promise she had made to them or was afraid of again incurring their displeasure by refusing to execute the deed. If the former was the case, she can hardly be allowed to say that she executed it against her will and the convictions of her own mind ; and the latter will avail but little as an excuse for one who is proved to be " remarkably pertinacious in her opinions, not easily persuaded and certainly not to be intimidated from them.”
The deed, moreover,.is but a reasonable settlement of this family matter. There is nothing inequitable or unconscio*533nable in its provisions. Such a deed, free from fraud, though a voluntary one, yet made with a view of effecting a family settlement, a court of equity will seek to uphold rather than to destroy for obvious reasons of public policy as well as for the sake of the peace of families.
This deed has not been attended with the good results which were expected from it by her friends but has rather had the effect, as it would seem, to estrange her the more from her husband and in some degree to sever the ties of friendship and affection between herself and sister, yet this furnishes no argument against the validity of the deed nor any sufficient ground for not giving immediate effect to it. All this may have proceeded from some idiosyncrasy of mind that time may overcome—and the day may possibly not be far distant when the object of her friends in recommending this deed of appointment may be fully realized, notwithstanding the assertion in her answer that they had no right to suppose it would form the basis of a re-union between her and her husband, since she had uniformly declared that his acceptance of an irrevocable power over any part of her estate or its income would be the cause of a continued separation on her part. A re-union, however, was but one of the objects they had in view. If that failed, there was another which would be accomplished by her settlement of one-half of the income upon her husband. It would show her generosity and magnanimity and in that respect “ set her right before the world.”
There is another point in respect to Mr. Cruger himself which must be briefly noticed. He is charged with obtaining the deed fraudulently and in bad faith, well knowing that it would not be the means of restoring harmony between them. This is answered by the evidence showing that he was but a passive party and had no hand in procuring it other than as a mere recipient when the deed was offered and sent to him. But the charge of fraud and bad faith goes farther. His mere acceptance of the deed and his attempt to claim any rights under it are alleged to be contrary to good faith and the true intent and meaning of an ante-nuptial agreement and the deed of the 29th June 1833 consequent upon it.
*534In the former part of this opinion I have expressed my belief that there was no ante-nuptial agreement by which the property and its income were to be settled exclusively upon and to the use of the wife; and it is sufficient to say, with respect to the husband’s deed of the 29th June, that it contains in itself a power of appointment in the wife and that there can be no fraud or bad faith on his part in assuming or claiming rights purporting to_ be conferred upon him by any deed executed in pursuance of such power.
In examining this important and to the parties deeply interesting case, there are many facts and circumstances scattered throughout a large mass of testimony and numerous letters and papers made exhibits in the cause, which have given rise to much ingenious and elaborate discussion by the very able counsel on both sides. These have not escaped my attention; but it is unnecessary to present them here at length. They relate to matters which doubtless have had an influence upon the motives and actions of the parties in this unhappy domestic controversy and especially as inducing Mrs. Cruger to undertake the repudiation of her deed after having quietly acquiesced in and abided by its provisions for a considerable length of time. It has been strongly put by Mr. Cruger’s counsel—and there is reason to believe from the evidence that this attempt is owing to the officious interference of an individual whose calling should have led him to holier and better purposes than the fomenting of domestic strife and the encouragement of devastating litigation; but with this I have nothing to do.(a)
A decree must be made establishing the deed of the 29th June 1833 and the deed of appointment of the 19th November 1841 and holding the trustees to accountability to Mr. Cruger for an equal moiety of the net income of the estate.
The name of the minister here referred to no where appears in this opinion. The reporter deems it right to say this, because the names of clergymen are to be found in the course of this decision.