delivered the opinion of the court.
The court is of opinion that by the seventh clause of the will of William Wharton, deceased, the residuum
“ Seventhly. All the residue of my estate, real and personal, I hereby devise and bequeath to Joseph J. Halsey, to hold the same in trust for the sole use and benefit of my daughter Gabriella, and to manage the same for her, giving to her the rents, hires, issues and profits thereof during the term of her natural life, with power in the said trustee and the said Gabriella, by their joint consent and act, to sell such portions of the estate for the convenience of management as may be desirable or beneficial to my said daughter; the proceeds arising from such sales to be invested as the said trustee and my daughter Gabriella shall jointly deterPage 863mine, and be held in trust by my said trustee for the sole use and benefit of my said daughter Gabriella during the term of her natural life, and after her death to be divided equally amongst her children living at the date of her decease, and the representatives of such as may die leaving children; and in the event of my said daughter^ dying unmarried, or having been married,.without leaving children living at the time of her death, then my will is, that my estate, subject to the provisions and legacies hereinbefore made for my wife and others, shall pass and go to. such persons, and in such proportions and-manner as my said daughter Gabriella shall, by her will duly executed, appoint; and in the event of my said daughter’s decease without children and without leaving a will, then that my estate shall be equally divided between the children of my brothers, share and share alike.”
The testator died shortly after the date of his will, which was on 16th day of July 1858. The will was recorded August 16th, 1858. He had but one child, the said Gabriella D., who was born on the 20th day of May 1844, and was therefore only a few months over fourteen years of age when her father died. She was the chief object of his bounty, the other objects being his wife, mother, brother and sister, who were provided for by prior clauses of his will. By the 8th and last clause, he nominated William J. Wharton, Joseph J. Halsey, and John Wharton his executors, and they duly qualified as such. The widow of the testator died in 1859; and about a week thereafter, to-wit in July 1859, their daughter, the said Gabriella, intermarried with John S. Wharton. They were married in Washington city. Joseph J. Halsey, the trustee named in the residuary clause of the will aforesaid, accepted and undertook the trust thereby reposed in him, and
John S. Wharton complied with the condition of the said decree by executing bond with security as thereby required; and afterwards, to-wit: on the 16th day of September 1864, acting as such substituted trustee, sold and conveyed a large and valuable portion of the trust subject to-wit: 568J acres of land, to the appellant E. W. Bedinger, for $56,805 in confederate money. It is stated in the deed that it is, “between John S. Wharton in his own right, as husband of Gabriella D. Wharton, as trustee of his said wife, by virtue of an-appointment by the circuit court of chancery of Culpeper county, Virginia, by decree entered on the 2nd day of November 1863, and Gabriella D. Wharton his wife, both of Richmond city, Virginia, of the first part,
By the 7th clause of the testator’s will, the residuum of his estate is given to a trustee “for the sole use and benefit” of his daughter. While these are not the most appropriate words for creating a separate estate, and while the word “separate” would have been more appropriate for that purpose, and would have left no room for doubt as to the intention of the testator, yet there are cases in which it has been held that the words “for the sole use and benefit,” especially when used in connection with the appointment of a trustee to hold for that purpose, are sufficient to create a separate estate. 2 Story’s Eq. § 1882; Nixon v. Rose, 12 Gratt. 425, and cases there cited.
But it is unnecessary to decide in this case what would have been the effect if these words only had been used in connection with the appointment of a trustee, and whether they would have sufficiently indicated an intention to create a separate estate. It is very clear that wre may look at the whole residuary clause to ascertain whether such an intention is thereby sufficiently indicated; and if so, effect will be given to the intention, just as much as if a separate estate had been expressly given, in the most direct and appro
Row, looking at the whole clause together, it would seem that there can be no room for doubt as to the intention of the testator; and that he certainly intended to create a separate estate in his daughter, and to guard it effectually against the marital rights of any husband she might marry. Such rights would have been wholly inconsistent with some of the most important trusts created by the clause. It is true the daughter was not only unmarried when the will was made, but was then an infant, and quite young, and no particular marriage of said infant was then in contemplation. It was clearly in the contemplation of the testator, however, that his daughter might, and probably would, marry and have children. And though any future husband she might have is not provided for, nor even referred to in the clause, it expressly provides for any children she might leave, and also for the event of her dying without children: disposing of the estate, in either event, without reference to any right or interest of any husband she might have.
It is difficult, if not impossible, to suppose, that with the subject of the marriage of his daughter in his mind, and thus providing for the issue of such marriage, and the event of there being no such issue in existence at her death, there would have been no reference whatever in the clause to the existence or nonexistence of her husband, if it had been intended that the estate left in trust “for the sole use and benefit” of his daughter should be subject to the marital rights of any husband she might have. These important words “for the sole use and benefit,” twice occur in the clause, and in each instance to show the purpose for which the trustee should hold and manage the
This view of the case renders it unnecessary to decide what would be the effect of the decree, which substituted her husband as trustee in the place of the one appointed by the will, and which declares that the substituted trustee is to hold the trust subject, “for the sole and separate use and benefit of the said Gabriella D. Wharton.” We need not, therefore, decide whether the question of separate estate be not in fact res adju■dicata in this case, and between the parties thereto. Certainly her husband had a right, so far as he was concerned, to waive and relinquish his marital rights, if he had any, and to sanction any construction of the court as to the existence or non-existence of such rights, adopted in a suit to which he was a party. And any subsequent purchaser of the trust subject from the trustee, with full knowledge that such construction had been adopted and acted on, as was the ease here, would seem to stand on the same ground with the husband in regard to any claim to marital rights in the
The learned counsel for the appellant refers to the cage of Gilbert v. Lewis as having been reported in 66 Eng. Ch. R. 88, and decided in 1862, upon which he-places much reliance; and he expresses the hope that-, the court will attentively consider the case. We have-accordingly examined and attentively considered it.. But we do not think that it is at all in conflict with what we have said. We find the case reported in 1 DeGex, Jones & Smith’s Reports, p. 88. It is a decision of Lord Chancellor Westbury, and only decides, that a mere devise to a woman for her sole use and benefit does not sufficiently indicate an intention to-limit the devised property to her separate use. There, no trustee was interposed, and there was nothing to-indicate an intention to create a separate estate but the words, “for her sole use and benefit.” The chancellor in delivering his opinion said: “There is’no trust created by the will. There are no words indicative of exclusive enjoyment beyond those that I have mentioned. There is no such machinery, in short, provided by the-will, as is requisite in effect for the creation^ or at all events for the administration of the separate estate of' á married woman. The devise is a legal devise, and the proposition is, that the words, ‘for her sole use and benefit,’ manifest a clear intention on the part of’ the testator, that in the event of subsequent covertureóf his widow, she should be entitled to a separate interest in the property.” He then proceeds to review the cases on-the subject, and concludes thus: “There-is no case of a will containing a disposition to a woman,, either single or becoming discovert immediately on the death of the testator, in which these simple words, unconnected with a gift to trustees, have been made the-
The court is further of opinion that the sale aforesaid, made on the 16th day of September 1864, by John S. Wharton as substituted trustee in the place of Joseph J. Halsey, to the appellant Everett W. Bedinger, of the tract of land lying in the county of Culpeper, constituting a part of the residuum and trust subject ■aforesaid, was a breach of trust in the said substituted trustee, to which the said purchaser was privy, and in which he participated. The sale was made for $56,805 dollars in confederate money, which, at the time of the sale, was so much depreciated in value, that twenty-five dollars of it were worth only one in gold. The gold value of the price at which the land was sold per acre was but four dollars, whereas the value of the land before the war was about twenty-five dollars. Hotbing but the most extraordinary circumstances ■could have warranted such a sale, and the burden of proving the existence of such circumstances devolved on the purchaser, in order to sustain, even if it should
The court is further of opinion, that the said Gabriella D. Wharton, being an infant on the 16th day of September 1864, when the deed by which the said land was conveyed to the said purchaser was executed, the said deed was therefore voidable by the said infant after she arrived at the age of twenty-one years, which was on the 20th day of May 1865; and was actually avoided by her after that event by the institution of this suit to recover the said land and the possession thereof, notwithstanding the execution of the said deed. Mustard v. Wohlford’s heirs, 15 Gratt. 829.
The court is further of opinion, that there was no such laches on the part of the said Gabriella D. Wharton in disaffirming her said deed as could prevent her from disaffirming it. Little more than four years elapsed after she arrived at the age of twenty-one years before the institution of this suit; she was a feme covert during all that period; and there were acts of assembly in force during the whole, or nearly the whole of it which prevented the running, even of the act of limitations, much less the operation of presumptions arising from laches and lapse of time.
The court is further of opinion, that there is no error’ in the decree appealed from in not dismissing the original and amended bills in this case, because neither of them contained any offer to restore the purchase money. Whether a contract of an infant be com
It does not appear, and is not probable; on the contrary it is extremely improbable, that any part of the consideration received from the appellant for the land sold and conveyed to him as aforesaid, or anything purchased or procured with such consideration or any part of it, remained in the hands of the infant on her arrival at lawful age; or even in the hands of her husband and trustee at that period. The consideration was received altogether in confederate money; which, if retained in the hands of the trustee until the end of the war, which happened not very long thereafter, would have wholly perished. Whether any, and if any, what, part of it was so retained, or what was done with it, does not appear; except that a part of it, to-wit: $30,000, (about one-half of it,) was expended in the purchase of a house and lot in the city of Richmond,
It is contended, by the appellant, that he is entitled to the property now in controversy under that provision of the residuary clause of the will which empowered the trustee and the said G-abriella by their .joint consent and act “to sell such portions of the estate for the convenience of management as may be desirable or beneficial to my said daughter; the proceeds arising from such sales to be invested as the said trustee and my daughter Gabriella shall jointly determine, and be held in trust as aforesaid, by my said trustee, for the sole use and benefit of my said daughter during the term of her natural life.” It is contended that under this a title was sold and
The testator does not empower the trustee to make-a saie 0f any part 0f the trust subject, except in conjunction with the said G-abriella, and by their joint consent and act; and then, only such portions of the estate for the convenience of management, as may be desirable or beneficial to his said daughter. His daughter was but fourteen years old at the date of bis will, and we cannot suppose that he intended to intrust to her so important a power to be exercised during her infancy, even conceding that he had the right to do so. We must suppose that he intended this power to be exercised, if at all, after her arrival at lawful age. If so, there was no power, even in the trustee, to sell the property at the time the deed was made, and of course the deed is void.
But even if the daughter was empowered to act in making a sale during her infancy; or, if the trustee-was empowered to act alone in making it, did it come-within the power to sell the whole of the trust subject?' or so important a part of it as the tract of land in question, which was no doubt the chief part of the trust subject, and the whole of the real estate embraced therein? Or was it intended to empower the sale of any comparatively small portions of the estate, perhaps slaves or other personalty especially, and then only “for the convenience of management.”
But however these questions may be,-it is unnecessary now to decide them. Certainly the sale of the land under the power, even conceding its existence, for confederate money, when it was so much depreciated in value as it was at the time of the sale, and when it was daily and rapidly depreciating more and more, was a palpable breach of trust in which the purchaser
It may be proper for us to say, in justice to the-appellant, before we close our opinion in this case, that
It is insisted by the appellees, that they are entitled to rents and profits from the 16th of September 1864, •or at least from the close of the late war, instead of
The decree appealed from is therefore affirmed.
Decree arrirmed.