By JUDGE SAFFOLD.
The bill prays a specific performance of the ante miptial contract, as far as the appellant is interested, and for relief against the operation of the judgment at law which the appellee has obtained against her. The answer does not deny any of the material facts charged, but rests the defence on the legal and equitable validity of the appellees title, and the confirmation it has received from the judgment at law rendered m his favor, in the suit between the same parties, and which has been recently affirmed in this Court.
That the estate was an inheritance of which the wife was seized; that the marriage actually took place; that there was issue of the marriage capable of inheriting; and that the wife had died previous to the institution of either suit; are facts which are not understood to he com [436] tested in this suit, but on the contrary, they are admitted. 3Nor is it understood to have been contended in favor of the appellant, that the Chancery proceedings in favor of Le-Catt and his wife, (which are admitted to be correctly set out in the record,) can have any material influence on the question, except so far as the divorce a mensa et thoro, can contribute validity to the conveyance subsequently made by the wife, or so far as it may tend to impair the right to curtesy, claimed by the husband. But the appellant relies for a recovery on the following positions: 1. That the marriage articles were fairly entered into for a valuable consideration, (marriage,) and that their terms are plain and explicit; 2. That Chancery, if not law, is competent, in case of failure to comply, to enforce such a contract, when sought by the party aggrieved; 3. That all persons claiming under either of the contracting parties, have a right to a specific performance of the contract, to the extent of the right or interest claimed.
Hence the entire controversy resolves itself into the question, what is now the legitimate effect of the ante nuptial contract. If the judicial determination which has been hadwaslegal, or if it has a binding influence at present, it is conclusive of the right, unless it is the province of Chancery, subsequent to the decision at law, to arrest the recovery, and establish it on other and contrary principles. It appeal’s from the views taken of the case in the former decision, and the authorities on which it was founded, that this Court was then of opinion that the right to the curtesy was sustainable, as well on the principles of equity as of law. It is true the opinion expressed more confidence as to the legal right, but it rested the decision mainly on Chancery authority.
In that decision, the case of Roberts v. Dixwell,a decided by Lord HardWicke, was one of the authorities relied on. . This subject, embracing the opinions of the same Chancellor, has recently been reviewed by Clancy, in his late treatise, b and whosej'authority is now referred to by the appellant. He says, (adopting the idea of Lord Hardwicke,) “ if a trust estate is not such a one as is sufficient to bar the husband of his tenancy by the curtesy, the next question will be, whether a devise to the wife for her separate use, will bar him? I am of opinion it will not,” for the reason, that there is a sufficient seisin in the wife. He also refers to a subsequent decision of the same Chancellor, in Hearle v. Greenbank, c in which the contrary [437] doctrine was held, “ that where the profits had been given to the separate use of the wife, she was thereby made a feme sole; that the husband could have no legal seisin during the coverture; could neither come at the possession, nor the profits; nor could he have an equitable’seisin, for that would be directly contrary to the father’s intention; and neither in law nor in equity was the husband tenant by the curtesy.” Thus it appears, as remarked by Clancy, “ that his lordship in one case, .considered the receipt by the wife of the rents, to her separate use, a sufficient seisin, to entitle the husband to curtesy; and in the other, that it was not a difference incapable of being reconciled; but that it had lately been decided, in conformity to Lord Hardwicke’s first opinion, that a trust of an estate to a married woman for her separate use, does not prevent the husband’s tenancy by the curtesy; that this decision was pronounced by the vice Chancellor, Sir John Leach, in Morgan v. Morgan, a where, previous to marriage, part of the estate of the wife was conveyed to trustees in trust for the separate use of the wife,,for life, with power to her to appoint the fee, by deed or will, and for want of appointment, in trust for her, heir heirs and assigns.
The decisions above referred to, being urged in favor of the heir of the wife, after her death, in opposition to the right of curtesy, the vice Chancellor said “ that as the two conflicting,opinions of Lord Hardwicko could not be reconciled, recourse must be had to principle and analogy; that, as at law, where the wife, during coverture, is seised of an estate of inheritance, the husband, having had issue by her capable of inheriting the estate, is entitled to the curtesy; so where the wife is seised of an equitable estate of inheritance, and has issue capable of inheriting it, the husband is equally entitled to the curtesy; that in "this case she had an equitable estate of inheritance, notwithstanding the rents and profits were to be paid to her separate use for life; that by the receipt of the rents, she was seised of the estate, and having issue capable of inheriting, the husband must be entitled to the curtesy. ”
The settlement in the case of Morgan v. Morgan, appears to have been more effectual and absolute than in the case at bar. There the conveyance was to trustees, in trust, for the separate use for the wife, for life, with power to her to appoint the fee by deed or will, and for want of appointment, in trust for her, her heirs and assigns; from which it might plausibly have been contended, the inten[438] tion was to place all the interest in the estate entirely beyond the husband’s reach or control, at any time and in any possible event. Such, however, under the policy of the law, favorable to the jus mariii, was not the judicial interpretation of the instrument.
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By JUDGE SAFFOLD.
The bill prays a specific performance of the ante miptial contract, as far as the appellant is interested, and for relief against the operation of the judgment at law which the appellee has obtained against her. The answer does not deny any of the material facts charged, but rests the defence on the legal and equitable validity of the appellees title, and the confirmation it has received from the judgment at law rendered m his favor, in the suit between the same parties, and which has been recently affirmed in this Court.
That the estate was an inheritance of which the wife was seized; that the marriage actually took place; that there was issue of the marriage capable of inheriting; and that the wife had died previous to the institution of either suit; are facts which are not understood to he com [436] tested in this suit, but on the contrary, they are admitted. 3Nor is it understood to have been contended in favor of the appellant, that the Chancery proceedings in favor of Le-Catt and his wife, (which are admitted to be correctly set out in the record,) can have any material influence on the question, except so far as the divorce a mensa et thoro, can contribute validity to the conveyance subsequently made by the wife, or so far as it may tend to impair the right to curtesy, claimed by the husband. But the appellant relies for a recovery on the following positions: 1. That the marriage articles were fairly entered into for a valuable consideration, (marriage,) and that their terms are plain and explicit; 2. That Chancery, if not law, is competent, in case of failure to comply, to enforce such a contract, when sought by the party aggrieved; 3. That all persons claiming under either of the contracting parties, have a right to a specific performance of the contract, to the extent of the right or interest claimed.
Hence the entire controversy resolves itself into the question, what is now the legitimate effect of the ante nuptial contract. If the judicial determination which has been hadwaslegal, or if it has a binding influence at present, it is conclusive of the right, unless it is the province of Chancery, subsequent to the decision at law, to arrest the recovery, and establish it on other and contrary principles. It appeal’s from the views taken of the case in the former decision, and the authorities on which it was founded, that this Court was then of opinion that the right to the curtesy was sustainable, as well on the principles of equity as of law. It is true the opinion expressed more confidence as to the legal right, but it rested the decision mainly on Chancery authority.
In that decision, the case of Roberts v. Dixwell,a decided by Lord HardWicke, was one of the authorities relied on. . This subject, embracing the opinions of the same Chancellor, has recently been reviewed by Clancy, in his late treatise, b and whosej'authority is now referred to by the appellant. He says, (adopting the idea of Lord Hardwicke,) “ if a trust estate is not such a one as is sufficient to bar the husband of his tenancy by the curtesy, the next question will be, whether a devise to the wife for her separate use, will bar him? I am of opinion it will not,” for the reason, that there is a sufficient seisin in the wife. He also refers to a subsequent decision of the same Chancellor, in Hearle v. Greenbank, c in which the contrary [437] doctrine was held, “ that where the profits had been given to the separate use of the wife, she was thereby made a feme sole; that the husband could have no legal seisin during the coverture; could neither come at the possession, nor the profits; nor could he have an equitable’seisin, for that would be directly contrary to the father’s intention; and neither in law nor in equity was the husband tenant by the curtesy.” Thus it appears, as remarked by Clancy, “ that his lordship in one case, .considered the receipt by the wife of the rents, to her separate use, a sufficient seisin, to entitle the husband to curtesy; and in the other, that it was not a difference incapable of being reconciled; but that it had lately been decided, in conformity to Lord Hardwicke’s first opinion, that a trust of an estate to a married woman for her separate use, does not prevent the husband’s tenancy by the curtesy; that this decision was pronounced by the vice Chancellor, Sir John Leach, in Morgan v. Morgan, a where, previous to marriage, part of the estate of the wife was conveyed to trustees in trust for the separate use of the wife,,for life, with power to her to appoint the fee, by deed or will, and for want of appointment, in trust for her, heir heirs and assigns.
The decisions above referred to, being urged in favor of the heir of the wife, after her death, in opposition to the right of curtesy, the vice Chancellor said “ that as the two conflicting,opinions of Lord Hardwicko could not be reconciled, recourse must be had to principle and analogy; that, as at law, where the wife, during coverture, is seised of an estate of inheritance, the husband, having had issue by her capable of inheriting the estate, is entitled to the curtesy; so where the wife is seised of an equitable estate of inheritance, and has issue capable of inheriting it, the husband is equally entitled to the curtesy; that in "this case she had an equitable estate of inheritance, notwithstanding the rents and profits were to be paid to her separate use for life; that by the receipt of the rents, she was seised of the estate, and having issue capable of inheriting, the husband must be entitled to the curtesy. ”
The settlement in the case of Morgan v. Morgan, appears to have been more effectual and absolute than in the case at bar. There the conveyance was to trustees, in trust, for the separate use for the wife, for life, with power to her to appoint the fee by deed or will, and for want of appointment, in trust for her, her heirs and assigns; from which it might plausibly have been contended, the inten[438] tion was to place all the interest in the estate entirely beyond the husband’s reach or control, at any time and in any possible event. Such, however, under the policy of the law, favorable to the jus mariii, was not the judicial interpretation of the instrument.
The case mainly relied upon, in opposition to the right of curtesy, a is by no means decisive of the doctrine attemptec^ sustained by it. It involved no question respecting the right to curtesy. That was a contest concerning the rents and profits during coverture. The contract was ante nuptial, and with a trustee for the intended wife, by which the husband-agreed not to intermeddle with, or have any right,'title, or interest, either at lavi1 or in .equity, to any part of the rents, issues, and profits, or proceeds of the wife’s property, real or personal; but it was, by the conveyance, to continue to remain and be to her, and it was provided that “after marriage, she should be permitted to hold and enjoy the same, andreceive and take the rents, issues and profits, &c. to the end that the same should not be subject to the control, debts,intermeddling, orengagements of her husband, but should be to her only use, benefit and disposal. ” The wife’s right to the rents, issues and profits, was protected, but nothing was expressed in the. decision, from which an inference can be drawn .that the husband would not have been entitled to curtesy, if the other legal requisites to such an estate had occurred. The same remark ^® aPP^®^to ^ie case °f Stewart v. Stewart,b which was also supposed to have a material bearing on the question; nor can the divorce a mensa et thoro have the effect to bar the curtesy. This decision is not intended to convey any intimation of the opinion of the Court respecting either the legal or equitable interest of the appellant,' after the death of Lecatt. The right to the curtesy only is now in question; and so far as this question is concerned, the Court feel no dissatisfaction with the principles of the former decision, and think them decisive of this controversy, as well in equity as at law, consequently that the decree of’the Circuit Court must be affirmed.
By JUDGE CRENSHAW.
When the case of Lecatt v. Smoot 4’ Nicholson, was determined at a former term of this Court, I expressed what I conceived to be a sound interpretation of this ante nuptial contract, executed by Lecatt, previous to his intermarriage with Ann Sertill The subject is doubtless one of deep interest to the parties [439] concerned, and with me this was an additional inducement to re-examine, and maturely deliberate again on that part of my opinion which relates to the question before us. In the opinion which I then pronounced, I endeavored to shew, that by the terms of the instrument, Lecatt did “renounce all claim, right, title, or interest, to any part of the estate of Thomas Surtill,” whichhemightacquireby virtue of the intended marriage; that his relinquishment extended to any right or claim in that estate which might accrue to him at the death of his wife, so as to bar his right to the curtesy; that this, like all other instruments of writing, should be construed according to the obvious meaning and intention of the parties; that it being conceded on all hands, that the contract did deprive Lecatt of all right to the use and enjoyment of the estate during the life of his wife, that from the generality of the terms used in the contract, it must equally extend to a renunciation of any right in that estate, which might result to him on her death; that his right to the curtesy after her death, was as much by virtue of the intermarriage, as was his right to the use and enjoyment of the estate during her life; that more emphatic language could not have been used, to bar Lecatt of all right, in the estate which might be acquired by the intermarriage, unless the right to curtesy in so many words had been expressed; and that I deemed it unnecessary to resort to any rules of construction, because the meaning and intention of the parties were, to my mind, apparent beyond a doubt. I further insisted that if the contract created a trust estate, it was not void for want of a trustee; and that such a contract depriving Lecatt of his right to the curtesy, could be successfully used in resistance to an action at law, brought to recover his curtesy. But that the instrument in question, as I conceived, bore no resemblance to a deed of trust; nor did it create a trust estate, but was a mere renunciation of a future interest, and which duriqg the life of Lecatt, was intended to leave the estate where he found it, previous, to his intermarriage. This was the light in which I then viewed this contract, and which I considered to be its fair and legal interpretation; and now after again hearing a full argument, and taking a closer examination of the authorities, the conviction of my mind is still the same. I am still of opinion, that by the marriage contract, Lecatt did clearly relinquish his right to the curtesy. Independent of any rules of reason, I am inclined to believe that I am well sustained in my conclusions by [440] the authorities referred to, and which have been read and explained by the counsel for the appellant. But though this was then, and still is my opinion, on the construction of the marriage contract, yet a majority of the Court in that adjudication determined otherwise; and decided that this contract afforded no bar to Lecatt’s right to recover.
It then becomes important to inquire, whether this Court is now bound by an interpretation which they gave to the same contract, though between different parties, in a case on the law side of this Court, though in the present case we sit as a Court of equity.
That the rules of construing a contract are the same in both Courts, though the mode of proceeding and administering relief be different, is a proposition too'plaintoadmitof debate. If a Court of law having competent jurisdiction, interpret a given contract, and decide that it does no 11 ake away the right to curtesy, a Court of equity is concluded by such decision on the same matter, and between the same parties; but generally it is otherwise when the suit is between different parties.. But where the Judges to-day sitting as a Court of law, undertake to interpret a contract, and to decide on rights growing out of that contract; to-morrow, the same Judges sitting as a Court of equity, though in a case between different parties, ought to be governed by the principles of their first interpretation and decision, unless they believe it was manifestly wrong. If, in the case of Lecatt v. Smoot & Nicholson, a majority of the Court were of opinion that Lecatt’s right to the curtesy could not be defeated by the marriage contract, it would at least argue much inconsistency for them now to act in direct opposition to their former opinion, and give a new construction to the same contract; though they sit as Chancellors, and the case is between different parties.
For the reason alone, therefoi’c, that a majority of the Court are not ready as yet, to recede from their former construction and opinion, I do not dissent from the judgment now pronounced by the Court.
By JUDGE COLLIER.
Believing the opinion of the Court in this case to be at variance with correct legal rule, with entire respect, I feel it due to myself to express the reason why I have yielded to it my acquiescence. The reason is briefly this: this Court, at July term, 1828, in a case at law between these parties, in which the same subject matter was in controversy, held that the ante nuptial [441] agreement did not divest the right of the appellee to the curtesy. It is true, that, according to the view taken by the Court,that case might have been determined in favor of the appellee, without interpreting the legal effect of the agreement; but the record fairly presented the question of exposition, and as the powers of a Court of law, after the death of the wife, were as adequate to its adjudication as those of a Court of Chancery, I am therefore denied the right to declare the result of my judgment.
The principle of the opinion of the Court, according to my conception, is this: that the husband cannot be divested of his curtesy, by an agreement entered into with his wife previous to, and in contemplation of their marriage, unless that agreement renounces it in totidem verbis. If there be any authority savouring of this notion, it has eluded my researches, and doubtless those of the counsel for the appellee. The authorities by which the opinion of the Court is attempted to be sustained, when examined, will, I apprehend, be found to lend it no assistance. The case of Tabb v. Archer, if it can be used in this case for any purpose, will, when examined entirely, be found to be an authority adverse to the positions which it is quoted as evidencing.
If the ante nuptial agreement was presented to a conveyancer as a memoranda, from which to draft a marriage settlement, would he not so draw it as that the husband’s right to the curtesy would be relinquished, according to the rules of law as heretofore ascertained? Most certainly he would What else can be meant by these words: “ That the said Littleton Lecatt, by these presents, renounces all claim, right, title, or interest to any part or or parts of the estate, of the late Thomas Surtill, in right of the said Anne Surtill, his intended wife,” than a renunciation of all “claim, right, title, or interest,” which the appellee might acquire, immediately on his marriage with “ Anne Surtill,” or on any contingency. This is a question to which it seems there can be but one answer.
I will not pursue the subject any farther, as I am denied the privilege of dissenting, but will remark, that whenever an analogous case shall come before this Court, I will treat it as res integra, in its adjudication.
Decree affirmed.