APPENDIX.

[The following opinion of Judge CABELL, in the case of Lightfoot's Executors v. Colgin and Wife, (ante p. 4282,) was accidentally omitted in its proper place. It is therefore here inserted.]

1813.

Judge CABELL. I concur, entirely, with the Judge, who JANUARY, has preceded me, in the full and various views, which he has taken of this important case; and deeming it unnecessary to travel over the same ground, which he has explored, I have but little to add.

Lightfoot's Ex. ecutors and others

V.

If the English decisions in cases, which depended on Colgin & wife. the Custom of London, be applicable to the case now before the Court, and be entitled to respect, there is an end of all controversy; for they would shew incontestably, that the Deed of Trust in the proceedings mentioned, executed by Lightfoot for his own use for life, and then for the benefit of the children of his first marriage, was a fraud upon the rights of his wife, the female Appellee, and ought to be set aside so far, as it conflicts with her interests. Their applicability does not depend, in any manner, upon the question, whether what is called the Custom of London was a general or a local law; was the remnant of the old common law, or the particular law of the city of London only. It must depend on the rights of the wife, and the incapacities of the husband, under the two systems, as compared with each other. If these rights on the one hand,

JANUARY, and incapacities on the other, be the same, the decisions 1813. of the English Courts upon the custom of London, alLightfoot's Ex-though that custom may never, as such, have had any force ecutors and in this country, will be as much entitled to respect by our Courts, as are their decisions upon any Statute of the British Colgin & wife. Parliament corresponding with some Statute of our Assembly.

others

V

I will examine the custom of London so far as respects the husband and wife.

The custom does not impair the husband's power during his life. It leaves him an uncontrollable sway over his personal property. He may sell it, give it away, waste or destroy it; nor can the wife prevent or set aside the most improvident and ruinous alienations. But it imposes a restriction or limitation on the power of the husband to dispose of his property by his Will. He cannot dispose of more than one half from his widow, in case there be no children, nor more than one third in case there be a child or children. But this restriction or limitation does not operate to vacate, ipso facto, any Will that violates these proportions. The Will is void as to the wife only; and even as to her, it is void only in case she objects to it. If she objects to it, she is then entitled to the proportion assigned to her by the custom. But she cannot claim under the Will, and under the custom also. She must make her election. (Preced. Chan. 353. 2 Vern. 355-356.) This right of the widow to object to the Will of her husband, and to claim the portion of his estate, which is, in that event, assigned to her by the custom, is a right, which may be the subject of a contract; for, if a woman, before her marriage, accepts a settlement, this compounding, as it is called, shall bar her share under the custom. (2 Bac. abr. 255. and the cases there cited.) Thus far, there seems to be no difference between the rights and incapacities of the wife and of the husband under the custom, and under our laws; for here, as in England, the husband exercises absolute power over his property during the coverture. The only restriction, here, is, as under the custom, on his power of disposing of it by Will. (1 Vol. Rev. Co. 163.) His Will, however, whatever it may

She may re

JANUARY,

1813.

Lightfoot's Executors and

others

V.

be, will stand if not objected to by the widow. nounce the Will in all cases, (so far as relates to her); and then the law assigns her a certain portion of the estate, corresponding precisely with the custom, except as to slaves, of which she never has more than the use of one third during her life. She cannot claim under the law, and Colgin & wife. under the Will, any more than she could claim, in England, under the Custom and under the Will; but is driven to her election. It is also equally clear, that the right of the wife to object to the Will, and claim under the Law, is so far the subject of a Contract, that it may be barred by a settlement before marriage. It might be equally the subject of a contract during the coverture, but for the union of person of husband and wife. Being such a right, as may be the subject of a contract, it may also be the subject of a fraud.

It is not necessary to pursue the analogy any farther. It has been shewn to be complete so far, as relates to the powers and incapacities of the husband under the two systems: and, as the question now to be decided relates to the validity of the act of the husband, I can perceive no reason why the English decisions are not applicable; and, as such, entitled to the respect, which is usually given to them in analogous cases. If they be thus respected, the cases referred to by the Judge, who has preceded me, are decisive of the question.

But if those cases were put entirely out of view, and the question were now to be considered, as an original one, my mind would, on general principles, be irresistibly led to the same conclusion.

An examination of those acts and alienations, which the husband may certainly do and make, with respect to his property, and of those, which he certainly cannot do and make to the disadvantage of his wife, will lead us to the reason, and, of course, to the sound construction of the law. As was be

fore said, the husband may waste or destroy his property; he may sell or give it away. But these acts take complete effect in his life time. They operate equally upon the husband and

1813.

others

V.

JANUARY, wife. Such is the union and identity of person of husband and wife, in legal contemplation, that the law confides her inteLightfoot's Ex-rests, during the coverture, to his exclusive guardianship. ecutors and But this extends to such cases only, as take effect during the coverture. As to these, such guardianship may be safely enColgin & wife. trusted to him, because he cannot affect her interest without affecting his own. As to these, therefore, he has absolute sway, without responsibility. But the law does not allow him to dispose, by Will, of more than a certain proportion of his estate, from his wife, without her consent; or rather if she chooses to object to it. Why this difference between a Will and other alienations? It arises from their different manner of operating. The latter operate upon husband and wife equally. A Will does not operate on the husband at all. It leaves him the ownership, the use and the benefit of the property as long as he lives, or is capable of feeling an interest in any thing, and disposes of it at the moment, when the connexion between husband and wife is at an end, and when the union of Interest no longer exists. The law, therefore, at that

moment, resumes the guardianship of her rights, prevents her from being affected by his Will, without her consent, and places her in a rank superior to children, and inferior only to creditors. It is true that the terms of our Act of Assembly apply to a Will only. But laws are to be construed according to their spirit, and not restricted to their letter. The object of the Legislature was to prevent a man from enjoying his property during his life, and disposing of it from his wife at his death. The Deed of Trust, in this case, although not in the form, is in the nature of a Will. It is, in fact, a Will in disguise. Like a Will, it is voluntary. Like a Will, it leaves to Lightfoot the exercise of all the rights of ownership, and the whole use and benefit of the property during his life; and, like a Will, the interest which it parts with was not to commence in enjoyment, until his death. It is of no importance, in my estimation, that this Deed purported to be irrevocable. Considering the time and the circumstances, under which it was made, and the persons, in whose favor it was made, as also the immense

1813.

Lightfoot's Ex

others v.

estate, which the grantor possessed, it was very improbable JANUARY, that he would ever wish to revoke it. As to Lightfoot then, and as to his wife, it was intended to operate as a Will. Had it been a Will in form, as well as effect, it would unques- ecutors and tionably have been unavailing as to the wife. But what the law will not tolerate, when done formally and directly, Colgin & wile. ̧ equity will not sanction when done indirectly, by fraud, trick and device. I am, therefore, of opinion that the Deed of Trust operates no bar to the rights of Mrs. Lightfoot, now Mrs. Colgin, and that she is entitled to the same portion of Lightfoot's estate, as if that Deed had never been made, and he had died intestate.