Argued, Janua Lightfoot's Executors and others against Colgin ry 21st, 1813. 1. A wife has not such an interest in that portion of the personal estate to which she his dying intes may renounce, and wife. UPON an appeal from a decree of the Superior Court of Chancery for the Williamsburg District. The bill was filed in behalf of Anne C., widow of Wilof her husband, liam Lightfoot, deceased, (who, afterwards, during the pen. may be entitled dency of the suit, was married to John Colgin,) against the in the event of executors and children of the said Lightfoot by his first wife, tate, or leaving and William Allen their trustee, for an assignment to the coma will which she plainant of her dower and distributive share of the real and as that an abso- personal estate of said decedent; and that certain deeds which lute and irrevocable, though he had executed in favour of those children, be set aside, as merely volunta-fraudulent contrivances to her prejudice; the same having been ry, deed thereof, executed by him made with the design of depriving her of the rightful portion of his estate, to which she would have been entitled had he died intestate; it being alleged that, in fact, the deeds in question were nothing more than a will in disguise; the donor (as rights, or be set was contended) retaining to himself the complete control of the aside at her in-. stance. property during his life, and not relinquishing the possession of any part of it until his death. It was also charged, that by a to his children 2. A deed of trust, if not revocable by the grantor, is not a will in dis secret understanding between the donees and him, the deeds to be considered were intended to be not absolutely binding upon him, but revocable at his pleasure; which charge, however, was denied by the defendants, as were also, generally, the other matters of equity set forth in the bill. guise, on the grounds that nearly all his personal estate is thereby conveyed, and that be reserves to The plaintiff, by an amended bill, moreover charged a parol agreement to have been made, before the marriage, and in himself the consideration of her consenting to it, by which the said Wilpossession and control of the liam Lightfoot bound himself to make a settlement upon her, property during in lieu of her dower, &c.; but such agreement was denied by the answers, and not satisfactorily proved. The remaining circumstances of this case are fully stated in the opinions of the judges of this court. his life. The cause coming on to be heard on the bills, answers, exhibits and sundry depositions, the chancellor (TYLER) regarding the deeds" as being executed for the purpose of defrauding "the female plaintiff, then the wife of the said William Light"foot of the interest in that portion of his estate, thereby con JANUARY, 1813. Lightfood's exe cutors and others V. veyed, to which she would be entitled as his widow in the event of her surviving him," adjudged, ordered and decreed, that all the said deeds be set aside, so far as the interests of the said female plaintiff are thereby effected; that commissioners be appointed to assign to the plaintiffs, in right of the female plaintiff, widow of the said William Lightfoot, her dower Colgin and wife. of all the lands whereof he was seized, (except certain lands in which her dower had already been allotted,) and of all the slaves whereof he was possessed, at the time of his death, and of the increase of the said slaves since that time, including those conveyed by the deeds aforesaid; the lands and slaves thus allotted to be held by the plaintiffs during the life of the said female plantiff; that the defendant Allen, and the children by the first marriage, render accounts of all the property to them respectively conveyed, and of the profits thereof, from the death of the said William Lightfoot; and that the executors render accounts of the hires and annual value of all the slaves, which have come into their possession as executors, and of their transactions generally, to be reported to the court, &c. From this decree the defendants appealed. Wirt for the appellants. Call and Murdaugh for the appellees. Wednesday, February 14th, 1816, the Judges pronounced their opinions. Judge COALTER. William Lightfoot of Charles City, in the year 1807, intermarried with the female appellee, by whom he had two children. Having taken up, very unjustly it would seem, an unfavoura ble opinion of his wife, and she having also displeased him by a refusal to relinquish her dower right in some lands, conveyed to one of his sons by a former marriage, he took advice how he might dispose of the greater part of his personal estate in favour of his other children by that marriage, so as to exclude his then wife and the children by her. At the time this design was conceived and carried into effect, so far as hereafter stated, he was in very bad health, in which situation he continued to languish for about two or three mouths, when be died. The plan selected for this purpose was to execute a deed of trust, which was accordingly done, to his friend and relation, JANUARY, William Allen, in substance as follows. 1813. Lightfoot's exe cutors and others V. After stating that his purpose in making said deed was to advance his sons and daughters by certain gifts in his life time, which it should not be in his power to revoke, and to relieve his mind from the care and management of some parts of his estate, he, in consideration Colgin and wife. thereof, and of the love of his said children, to wit, William H. Lightfoot, Philip J. Lightfoot, Mary E. B. Blakey, and Anne C. Lightfoot, and of one dollar, conveys to said Allen, his executors, administrators and assigns forever, all his slaves, except seventy-five, to be selected as therein after mentioned, and all his other personal estate of whatever consisting, whether of plate, SPECIE, bullion, debts by bond, bill, note or open account con tract, or otherwise, or of furniture, stocks of horses, cattle, sheep, hogs, or other things, upon the following trusts, conditions and exceptions, and to and upon no other: 1st. To suffer the said Lightfoot to hold and enjoy the said slaves and other personal estate, or such part thereof as he may choose, during his natural life, and if he shall think proper to part with any of said stock, he shall be at liberty to do so, and shall account with said Allen for any money arising from the sale thereof: 2d. To reserve out of the personal estate, so conveyed, so much as shall be necessary for the discharge and satisfaction of all his said Lightfoot's just debts: 3d. To reserve, also, out of said personal estate, so much as shall be sufficient to raise the sum of six thousand pounds; three thousand whereof are to be forthwith considered as vested in and belonging to said Mary E. B. Blakey, and the remaining three thousand are forthwith to be considered as vested in and belonging to said Anne C. Lightfoot: but it shall not be the duty of the said William Allen to pay the same to the said Mary E. Blakey, her husband or the said Anne C. Lightfoot, during the life of said William Lightfoot, until, in his full, free, and uncontrollable discretion, he shall think proper so to do: and if the said Anne C. Lightfoot shall depart this life before marriage, then the said three thousand pounds shall be divided equally among the surviving children of said Lightfoot by his first wife : 4th. To select the seventy-five slaves, reserved as aforesaid, in such manner as said William Lightfoot may prefer, and, if he makes no such preference, in such manner as said Allen shall choose, due regard being had to the proportionate qualities and JANUARY, values of all the slaves. 1813. Lightfoot's exe cutors and others 5th. To transfer and assign, and in the fullest manner convey, to said William H. Lightfoot, whensoever, according to the true intent and meaning of these presents, he may lawfully demand the same, a full moiety of said slaves, and other personal Colgin and wife. estate, as may belong to him, after the deductions, reservations and conditions aforesaid, and upon an equal division of the remaining parts between the said William H. Lightfoot and Philip J. Lightfoot. 6th In like manner to transfer, &c. to Philip J. Lightfoot, whensoever he shall be capable in law of receiving the same, or to his guardian, whensoever, according to the true intent and meaning of these presents, he may lawfully demand the same, a full moiety of said slaves, &c.: but if the said Philip shall die before the age of twenty-one, without leaving, at his death, any child or children lawfully begotten, then his moiety, upon the divi sion aforesaid, shall be equally divided among the surviving chil dren by the first marriage. 7th. The grantor excepts out of the operation of said deed such property, as he had heretofore given to his children, and then concludes, that said Wm. Allen shall not be liable, in any manner, to any loss, damage, or expence in the execution of the trust, and that his accounts, divisions, selections of slaves, reservations, and actings shall stand firm and valid, without any CHARGE OF NEGLECT, &c. This deed bears date on the 21st of April, 1809. There are the names of three subscribing witnesses to it; it was recorded, however, in Charles' city court on the 19th of May, 1809, on the proof of only two witnesses, John Willison and James Stuart, who stand first in the order of signing. Stuart, in bis deposition, says it was executed and attested by him on the 17TH OF MAY, 1809; at which time said Lightfoot was very unwell; and that 140 of his slaves were brought to his house, valued by Wm. Allen, and divided between the two sons mentioned in said deed, but not removed. A few days after THE DATE of this deed, to wit, on the 27th of April, 1809, the same Wm. Lightfoot made his will, wherein he says, "having executed a deed for the greater part of my "slaves and other personal estate to Wm. Allen, in trust, with JANUARY, 1813. Lightfoot's executors and others V. "certain reservations, &c. I do hereby confirm to my severať “ children therein named, by my first wife, and to my son in law "Geo. Blakey, all the estate to them respectively thereby given, whe"ther of slaves, money, horses, or any other thing." 2d. He gives to his wife her dower in his land, and her distributable share in Colgin and wife. the personal estate now remaining to him. 3d. To his children by her he gives $400 each, to be paid by his sons William and Philip out of the portions of his estate devised or bequeathed to them. He gives to his daughters, each, any two negro girls they may select out of his estate. He then devises a large real estate to his son Philip, and half his remaining slaves; and to his son William all the residue of his real and personal estate, and the one half of his remaining slaves, &c.; and constitutes William Allen, John Tyler and George Blakey executors of his will, and guardians of his son Philip and daughter Anne, and gives them power to make division and partition of the said estates according to the provisions of his said will, and that no security shall be required of them as executors. On the 18th of May, he makes a deed to his son William, for the consideration of natural affection, and a small annual hire, for a number of slaves, part of the seventy-five reserved as above; and, also, about the same time. makes deeds to his son in law Blakey and his daughter Anne, for two negro girls each, which he says he had given them by his will. On the 8th of June, he makes a codicil to his will, giving to his son Philip seventeen slaves, by name, to be of equal value to those given to William by deed, being part of the seventyfive reserved. It appears that the personal estate of said Lightfoot exclusive of the 140 and 75 slaves above, was considerable, in household furniture, horses, stock of all kinds, &c.; of which, it seems, Allen has sold, by consent, since this suit, to the amount of $11,385,00-that said Allen has received into his possession the iron chest and trunks of said Lightfoot, since his death containing his books of account, bonds and other evidences of credits, including loan office certificates, bank notes and cash, to the amount of upwards of 15,000l. :—in addition to which, there appears a credit of about 1250l., on account of tobacco sold by Lightfoot, after the deed of trust, to |