Coatney v. Hopkins

JOHNSON, Judge, delivered the opinion of the Court: The important question to be decided in this cause is: What effect the deed of marriage settlement had upon the property of Lucinda Hopkins ? She was about to be married and was possessed of certain personal property, and must have intended that the deed would have some effect upon it during the marriage and in a certain event, at least, after the marriage was dissolved by death. This cause arose before the adoption of the Code of 1868, that provides for the separate estates of married women, and must be decided according to the principles of equity, uninfluenced by statute. The language of the deed is somewhat peculiar. After conveying all her property to the trustee, follows this language : “ To have — 351 — and to hold the same, and for the trusts and purposes following, that is to say: In trust for the said Hopkins, and her assigns until the solemnization of the said intended marriage; then upon trust that the said A. W. Dyer (the trustee) his executors, administrators or assigns shall and will permit the said Daniel H. Ar-mentrout, during the joint lives of himself and the said Lucinda, his intended wife, to receive and take the said property, debts, legacies and money (except $500.00, a portion of the amount due said Lucinda from the estate of John Hopkins, deceased, and also her female slave and her increase, and said Lucinda’s beds and bedding) for the joint use of the said Daniel H. and Lucinda. The money and property above exempted, to be held in trust for the said Lneinda ; and after the death- of the said Daniel H. Armentrout, if he should die before said Lucinda, all the property, debts and legacies, or so much thereof as shall remain, to be paid over to the said Lucinda, her heirs or assigns.” It does not make any provision for the property, or that remaining, in case she died before her husband. She did die before her husband. The first question is : What were his rights as to the unexcepted property at the death of his wife? The marriage settlement in the case of Piehett et ux. et al. v. Chilton, 5 Munf. 467, was very much like the one in this cause, much nearer like it than in any other case I have found except one in 16 Gratt. In that case Mrs-Felicia Chilton, the widow of Orrick Chilton, deceased, who was possessed of a considerable personal estate, and had then living two ohiidren by her first husband, being about to marry John Chilton, made a deed of trust of hei said property to George Christopher, and Thomas Chilton their executors, &c., upon trust,“for Felicia Chilton and her assigns, until the solemnization of the marriage, then upon trust, that they, the trustees, their executors, &c., should permit the said John, and Felicia Chilton his intended wife, to have, receive and enjoy all the interests and profits of the said property assigned, to and for his — 352 — own use and benefit, and from and after the decease of °f them, the said John and Felicia, as should first happen to die, then upon trust, that he, the said trustees, &c., should assign, transfer and pay over all the said property that may remain to the said Felicia Chilton in case she survived John Chilton, hut if she died before him, then unto such person or persons, and at the time, and in the proportions, as she the said Felieia should, notwithstanding her coverture, by any writing or writings under her hand, and seal, attested by three or more credible witnesses, or by her last will and testament in writing, to be sealed, &c., and published before the like number of witnesses, direct, limit, or appoint; to the intent that the same might not be at the disposal of or subject to the control, debts, forfeitures or engagements of the said John Chilton.” Then followed a provision that in the the event of her surviving him and claiming any part of his estate by right of dower or otherwise, the trustees should hold for his benefit, and that of his executors, &c. No provision was. made in the deed for the event, which afterwards actually occurred, by the appellee’s surviving his wife, and her failing to make any appointment. The controversy was, whether the husband, or the wife’s two children by a former husband were entitled to the property. The case was ably and elaborately argued by distinguished counsel. Judge lioane delivered the opinion of the court, in which he said: ‘‘Upon a true construction of the marriage agreement, among the exhibits, the right of John Chilton, the husband, to the personal • estate of Felicia Chilton, his intended wife, embraced by the said agreement is, by the terms thereof, only restrained during the coverture to the use of said property; and that after the coverture in the event, which has happened, of his surviving her, the said Felicia, the same was only intended to be further restrained, if, and in the event that, she she should limit and appoint the same pursuant to the power given by the said deed. * * * That these — 353 — provisions are to be considered as exceptions to, and restrictions upon, the general right wliicb he would otherwise have acquired as a husband, in and to the property aforesaid, and are to be no farther extended than as aforesaid, under the provisions oí said deed; and that there are no sufficient expressions therein, importing that his said intended wite should be considered as & feme sole farther than is inferable from the limitations and powers aforesaid; nor that the husband agreed to renownee all his marital rights to the property in question. * * On these grounds, and it not appearing that the deceased wife made any appointment pursuant to the powers given her by the deed, the court is of the opinion, that the right of the husband is not barred, and that the decree is not erroneous.” The decree was that the complainant should receive the property included in the deed. In Mitchell v. Moore et al., 16 Gratt. 275, the deed is in almost the precise language of the deed in the former case. The wife died first and made no appointment. Iiobertson, Judge, in delivering the opinion of the court, said: “In this case the deed óf settlement only excludes the rights of the husband surviving his wife, in the event of her exercising the power of appointment conferred on her. She died without exercising that power and leaving her husband surviving, so that he became entitled to all the personal estate embraced in the settlement, subject only to the ■ payment of debts, for which it was bound, funeral expenses and charges of administration.” It seems to be well settled, that at common law the Syllabus 1. husband jure mariti, is entitled absolutely to all of his wife’s personal property, which shall come into his possession, unless his right thereto is restrained by the deed of the wife made before the marriage, or by the instrument that conferred the property upon her. A deed of marriage settlement may be so framed as to Syllabus 2 deprive the husband of all his marital rights; but he will never be deprived of them to a greater extent than — 354 — the terms of the deed clearly require. Mitchell v. Moore et al., 16 Gratt. 275. And when his rights are only restrained by such deed Syllabus 8. during the life of the wife, at her death he is entitled to all the personal estate embraced in the settlement, subject only to the payment of debts for which it was bound, if any such there were, funeral expenses, and charges of administration. Mitchell v. Moore et al., 16 Gratt. 274; Pickett et ux. v. Chilton, 5 Munf. 467; Mathews v. Woodson, 2 Rob. 601. In this case, the deed did not' reserve to Lucinda Hopkins the right to dispose of the property, but only provided, that, if she survived her husband, the property should be delivered to her, &c. The principles of the two cases we have cited govern this; and as to all the property embraced in the deed, or so much as remained thereof, except that which was excepted by the terms of the deed, which we are not now considering, the husband of the said Lucinda was entitled to recover after her death; and it was his, subject to the payment of any debts for which it was bound, if any there were, funeral expenses and charges of administration. The next question is : Did the said Lucinda according to the terms of the deed of settlement have a separate estate in the excepted property ? It is true, that courts of equity will not deprive the Syllabus 4. husband of his rights at law by virtue of the marriage, unless there appears to be a clear intention manifested in the instrument, relied upon to create the separate estate, to exclude him. Buck et al. v. Wroten et ux., 24 Gratt. 250. To constitute-a separate estate in a married woman Syllabus 5. by an instrument such as a deed &c., no technical language is necessary ; but it must appear unequivocally on the face of the instrument to the satisfaction of the court, that the intention was to exclude the husband. Heathman v. Hall, 3 Ired. Eq. 414. Syllabus 6. The intention of the parties to a marriage settlement, is — 355 — to bo collected from the nature oí the agreement, the lan-guge and context thereof, the usage in similar cases, and the legal rights of the parties as they existed before, and Avould have existed after the marriage, if no such settlement had been made. Tabb et al. v. Archer et al., 3 H. & M. 399. In England it has been held, 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 sepai’ate estate,” 1 De G. J. & S. 37. In this case the woman was not married when she took under the will. “Sir Anthony Keck, Mrs. Vernons’s father, did by his will, made in 1695, devise the sum of £200 to his daughter, Mrs. Vernons, in'these’words, viz : 'To be by her laid- out in what she shall think fit, in remembrance of me.’ He gave also another legacy of £50 to the deceased Mr. Vernons, and made him one of his executors. It was said, that taking all these circumstances together, it must be intended, that the testator did plainly design this as a legacy to the separate use of his daughter, though he does not use these very words.” And it was so decreed. Atcherly v. Vernon, 10 Mod. Rep. 532. In Tyrrell v. Hope, 2 Atk. 561, the words in the instrument were. ''That she shall enjoy and receive the issues and profits of one moiety of the estate, &c.” The master of the rolls said : “Now the words separate estate are not in the note; but there' are other words which amount to it,” he then quotes the words, and. says: “which can admit of no other construction, but that it must be for her separate use ; for to what end should she receive it, if it is the property of the husband the next moment. The word enjoy too, is very strong to imply a separate use to the wife.” In Lee v. Prieaux, 3 Bro. C. C. 316 it was hold, that a “legacy to ájeme covert, 'her receipt to be a sufficient discharge to the executors,’ is equivalent with saying to her sole and separate use.” — 356 — In Wills v. Sayers, 4 Madd. Ch. 216, the bequests were to a mai’ricd woman, the first, “for the sole and separate use and profit &c.” and afterwards, a bequest of the residue “for her own use and benefit.” The Nice Chancellor said: “In equity, as at law, a gift to the wife is a gift to the husband, who being bound to maintain the wife, is entitled to her property. A court of equity however will execute a trust for the solo and separate use of the wife, when the intention of the donor to that effect is unequivocally declared. A gift to the Avife for her use is no declaration of such an intention; and it is difficult to find any substantial distinction between a gift to a wife for her use, and a gift to a wife for her own use. But if such a distinction could prevail in another case, it could not govern this case. Here the testator, as to the same person Avith respect to another gift, has appointed a trustee, and expressly directed the application of it to her sole and separate use; he knew therefore the technical form of excluding the right of the husband; and I cannot infer that as to this legacy he intended what he has not expressed.” .In Pennsylvania, 6Serg. & It. 466, it Avas held, that “a bequest to a married Avoman, for her oavii use, is equivalent to a bequest to her, for her separate use.” “By a devise to A., Avife of B., during her natural life and at her death to her children in fee, to be for her and her family’s use, during her natural life, and the children and their heirs to enjoy it at her death; B. takes no estate. By this devise A. takes an estate for life for her separate use, remainder to her children in fee.” Heck v. Clippenger, 5 Penn. St. 385. “A bequest to a avkIoaa' for her oavii proper use during her lifetime, remainder over, gives her a separate use.” Snyder v. Snyder, 10 Penn. St. 423. In Jarvis v. Prentice, 39 Conn. 273, A. by his will divided his estate into six parts, one of Avhich he gave to his Avife, the residue to his five children and their heirs forever, to be “for their own sole use and benefit,” and — 357 — for that purpose to be received and held in trust, by certain trustees. C. one of the five, was a married woman, it was held that the portion given by the will to C., was given in trust for her sole and separate use. “A gift to a married daughter, for her support during her natural life, creates a separate estate in the daughter.” 11 Rich. 393. A bequest of slaves t.o afeme covert “to her and the heirs of her body and to them alone,” does not confer a separate estate on the wife in exclusion of the rights of the husband. 4 Rich. 390. In Heathman v. Hall, 3 Ired. Eq. 414, it was held, that “to constitute a conveyance to a trustee for a married woman, one for her sole and separate use, no technical language is necessary; but it must appear unequivocally, on the face of the instrument to the satisfaction of the court, that the intention was to exclude the husband from any interference with the property conveyed. Where a conveyance was made to a trustee of certain negroes, in trust for the entire use benefit and profit and advantage of the feme covert, by these words a sole and separate estate in the property was conveyed to her.” In Ashcraft v. Little, 4 Ired. 236, it was held, that “ where a deed of gift of a negro woman was made to a married woman and her children (two sons) and these words were added, ‘but the said gift' to extend to no other person/ that the words did not create a separate estate in the wife, especially as they extended equally to the gift to the sons, and that therefore the husband was entitled to the share of the negro so given to the wife.” Daniel J. dissented. In Bridges v. Wood, the bequest was of a female slave to a married daughter, in these words, a “female slave and her increase to be at her own disposal in true faith, to her and her heirs forever.” It was held, that the will manifested a clear intention to create a separate estate in the married woman. In Hamilton v. Bishop &_Fly, 8 Yerg. 33, “ where — 358 — a s^ave was given to A. (a married woman) and tbc heirs °f her body, ‘to the use oí the said A. and children and to remain in the possession of said A. for the use and support of said children forever/ it was held that this was a gift for the sole and separate use of the wife and children.” In Fears v. Brooks, 12 Ga. 195, where A. left the residuum of his estate equally among his children, and directed that the shares of his daughter be paid by his executor to a trustee, afterwards named in the will for their use, then appoints a trustee, and directs him, “to receive from, and receipt to my executors, for the distributive share due to each of my daughters, and to be invested by him in such property, as in his judgment, may be most conducive to their comfort and interest, and to have the title to such investment made to him, as trustee, for their use and benefit,” it was held, “that a separate estate was created in his daughter, and that the power of alienation was restrained.” In Scott et ux. and Claiborne v. Gibbon et al., 5 Munf. 90, Judge Roane in delivering the opinion of the court said, that “ upon a true construction of that deed, -which declares that William Scott and Mary Davis, two of the parties thereto, should enjoy “ the interest and profits of the property settled jointly during their lives, that the settlement was made with the consent of William Scott, the intended husband, that the trustees therein named do permit the said William and Mary, during their joint lives to take and enjoy the said interest and profits, for their own use and benefit, the idea of a property in the said William in and to the settled subject during the coverture is clearly/eprobated. A contrary construction would not only defeat the avowed object of the settlement by sweeping away the property aforesaid, but it is in utter hostility with that part of the deed aforesaid which vests the property in the said William in the event of his surviving his wife; in which case the trustee is directed, to transfer, assign and pay over the property, — 359 — settled to William, terms which by contract closely import the contrary idea in relation to the same during the coverture,” In Smith v. Smith’s adm’rs, 6 Munf. 581, the deed contained this clause : “Grant and confirm unto the said Elizabeth H. Smith two negroés, Lucy and Mary her child, to have and hold to her own special use and afterwards to her heir or heirs. Nevertheless if the said Elizabeth H. Smith should die without heir, or heirs, or without a will disposing of the said Lucy and Mary, with their increase, to return to me or my heirs, as if this conveyance had never been made.” The deed was made by Jane Johnston, the mother of the grantee. The action was detinue, brought against said Elizabeth H. Smith, by the administrator of John Smith, who was the husband of the said Elizabeth. Judge Roane, delivered the following brief opinion of the court: “Upon the evident intention of the donor in the deed in the proceedings mentioned, and on referring to the authorities, the court is of the opinion, that the negroes in question were conveyed to the separate use of the appellant. The judgment is therefore to be reversed, and entered for the appel lant.” In West v. West’s ex’r, 3 Rand, 373, it was held, that “where a man made a will, by which he gave one-fifth part of his estate to his executors, for the benefit of a married daughter (who lived separate from her husband) at the discretion of his executors and also desired his executors to bring suit against the husband of said daughter for £200, which, when recovered, he desired his executors to dispose of the same to his said daughter to be disposed of at her discretion, that the devise gave the daughter a separate estate in the property devised.” In Lewis v. Adams, 6 Leigh 320, the language in the trust was : “In trust for Ish’s daughter;, Lucinda Adams, and all her children, their heirs, executors, administrators and assigns.” The deed conveyed two slaves. — 360 — Brockenbrough J. said : “It is further objected, that-by the deed the slaves are conveyed to the trustee, not for the separate use of the wife, but only in trust for her and her children; and her interest in the slaves enured to the benefit of the husband. It seems to me, that the object of the deed is manifestly to vest in the trustee the legal estate, exclusively for the benefit of the wife and children, independent of all conti’ol of the husband, and that he had no interest legal or equitable in the slaves.” In the same case Judge Carr said, page 335: “ It was further objected, that the property in the deed of trust not being conveyed to the separate use of the wife but simply to the use of the wife and children, her interest would.’enure to”the husband, and might be levied on by his creditors. I think not. Whenever á gift is made to the wife during coverture, even by a stranger, if it appear by any circumstance, that the intention of the donor was that she should have it to her separate use, equity will give effect to this intention, and hold the husband her trustee. * * * * In our case the deed is made to the trustee, not for the use of the husband at all, but in trust for the daughter of the grantor, and all her children. Now would not this trust be most clearly violated, and the intention of the grantor wholly perverted, by suffering execution against the husband to be levied on this joint provision for the wife and children?” In this case the suit was brought on an indemnifying bond, which was given the Sheriff who levied on the slaves mentioned in the deed of trust. It did not appear, that there was any relator in the suit, but the Sheriff brought the suit in his own name. The jury found a special .verdict-, among other things that the deed of trust, referred to in the opinion above quoted from, was executed; upon the special verdict the court decided in favor of the defendants, and the trouble in the Court of Appeals seemed to be the absence of a relator. Tucker P. said: “Believing as I do, that this transaction, as disclosed by the special verdict, was neither fraudulent in — 361 — fact, nor in law, and that the oase oí Lydnor v. Gee, places that matter beyond a doubt, it is with very great regret and reluctance I feel myself compelled to affirm the judgment upon what may seem to be mere matter of form, though upon all correct principles it is irresistibly a matter of substance. I refer to the omission to set forth a relator, either in the suit or declaration.” Judge Brooke said : “As he concurred with the majority on the merits, he thought it would be best to reverse the judgment and remand the case for further proceedings,” which was accordingly done. None of the judges dissented from the views of Brockenbrough and Carr J. J. as above quoted. Jn Cleland v. Watson, 10 Gratt. 159, a father by deed, “ granted to Dorothy Cleland (his daughter) for the use of herself and her husband, John Cleland, and their joint heirs forever, a number of slaves and other personal property, to have and to hold the said slaves and other property unto his daughter Dorothy Cleland aforesaid and her husband John Cleland, their heirs, executors, administrators and assigns.” The court held, that “according to the legal construction of the deed, * * * a “joint estate was conveyed to John Cleland and Dorothy his wife.” That there was nothing on the face of the deed, to show'that the husband was not the object of the grant- or’s bounty, as well as the wife. The property was granted to his use as well as to hers; and by the haben-dum, the said Dorothy and her husband were to hold the property to them, their heirs, &c. The court further held that the joint estate so conveyed to the wife and her husband, carried with it the right in the husband, to dispose of the property absolutely, after it had been reduced into possession. In Nixon v. Rose, 12 Gratt. 425, the testatrix bequeathed to three persons a number of slaves, upon the following trust, “to be Iield by them in trust only for the use and benefit of my daughter Emily Coup-land, or her heirs. And as it is my wish to guard — 362 — in the most ample manner against the imprudent sale, other disposition of the aforesaid property, during the natural life of the said Emily Coupland, it is hereby wholly and solely confided to the discretion of the aforesaid trustees (naming them) in what manner the said Emily Coupland shall receive and enjoy the profits arising from the hire or other disposition of the slaves aforesaid. And in the event of the death of the said Emily Coupland without an heir, or heirs, of her body, then and in that case I desire that all the slaves and their increase may be given up to my son, Gustavus A. Ross, or his heirs forever.” The court held that Emily took an absolute interest' in the slaves, and the bequest was not void for remoteness. And further that it was a bequest to the separate use of the said Emily. In delivering the opinion of the court, Moncure J. said that “no particular form of words were necessary” to create a separate estate in a married woman. That “ whenever it appears, either from the nature of the transaction, or from the whole context of the instrument, that the wife was intended to have the property to her sole use, that intention will prevail. * * Though it seems that the intention to give her such an interest in opposition to the legal rights of her husband must be clear and unequivocal.” In Buck et al. v. Wroten et ux., 24 Gratt. 250, the language of the will was, “All the rest and residue of my estate, of whatsoever nature, kind or description, not hereinbefore disposed of, including all my slaves, and the future increase of the females thereof, on the death or marriage of my .wife, I give and devise to my daughter Eliza Ann Gen ther, and her children, including her child by her first husband, Wm. Rollow, deceased, to and for her and their sole and separate use and benefit, and not to be subject to, or liable in any way whatsoever for the debts of her husband Henry D. Genther.” The facts showed that at the testator’s death his daughter,Eliza, had five children,-three danghters and two sons, one o* — 363 — the daughters being about twenty years old and the other two,-being ten, and three, respectively. The first married Geo. W. Wroten. The suit was brought to subject the property, devised to Sarah the wife of said Wroten, under the sixth clause ot the -will above quoted, to the debts of her husband, Geo. W. Wroten. The court held, that property left to the granddaughter under the will, was not left to her exclusive use and benefit, so as to defeat the marital rights of her husband. Christian J. said: “It is clear, that under this clause there is a plain and distinct intention to exclude the marital rights of the husband of his daughter Eliza Ann Genther. But is there no doubt of his intention to exclude the future husbands of his granddaughters, none of whom were married, and two of whom were infants of very tender years? The true construction is in my opinion, quite the other way. The testator is providing for his daughter, and his grandchildren, some of whom are males, and some females. He devises his property to his family, males and females “to their sole and separate use, and not to be subject to, or liable in anyway whatever for the debts of Henry D. Genther, the husband of his daughter, and the head of that family. It was against his (Genther’s) debts and liabilities that he was seeking to protect the property, and secure it for the use of his daughter, and grandchildren. There is no allusion made to the marriage of his granddaughters, nor is there anything to show, that the testator had present to his mind the right, which their future husbands would obtain in the property.-” Here was a case in which the words used in the devise giving the property to the children, were “for her, and their sole and separate use and benefit,” yet it was held, and we think properly held, that those words, under the circumstances, did not give a separate estate in the granddaughters, hence from the nature of the transaction, and the context, it was apparent, that it was not the intention of the testator to defeat the marital rights of the future — 364 — of his granddaughters. The words in themselves are the appropriate ones to confer a separate estate upon the daughters. It is settled that if a testator gives property to a devisee, or legatee, to use or dispose of at his pleasure, that is, to consume or spend, sell or give away at his pleasure, such devisee, or legatee, has the fee simple or absolute possession, even though his interest in it be called a life-estate by the will, and there be a provision in the will whereby what remains of the property, at the death of the devisee, or legatee, is given to another person. Milhollen’s ex’r v. Rice, 13 W. Wa. 510, and numerous cases there cited. In this ease, if the wife survived the husband, “what remained” was to be delivered to her. "We think therefore there is much force in the language of Mr. Perry in his work on “Trusts” 594, that, “The authorities in the several States, and even in the same State, are conflicting with each other, as to what words are sufficient, and what are not sufficient to create a separate use in a married woman. It is wholly a matter of intention to be gathered from the whole instrument, therefore the context may compel the court to give a different meaning to the same words, or rather the court may be compelled to draw different conclusions of facts from the same words, in different wills, the burden always being upon those, who attempt to exclude the husband, to show that such is the necessary intention of the instrument.” Does the deed in the case before us then give to Lucinda Hopkins a separate estate in the excepted property ? syllabus 7. T]le language is that the trustee “Shall and will permit, the said DanielH. Armentrout, during the joint lives of himself .and the said Lucinda," his intended wife, to receive and take the said property, debts, legacies and money (except five hundred dollars, a portion of the amount due said Lucinda from the estate of John Hopkins, deceased, also her female slave and her increase, and said Lucinda’s beds and bedding) for the joint use of the said Daniel H. and Lucinda. 1 he money and property above excepted to be held in trust for the said Lucinda.” — 365 — The words standing alone, we do not think, would create a separate estate in Lucinda; but when we remember, that it was a deed of marriage settlement, that she gave up all the property to be taken by her husband, except live hundred dollars, her slave and her increase, and her beds and bedding, we must come to the conclusion that it was her intention that such property was to be set apart for her sole and separate use, otherwise the excepted property would be disposed of precisely as the other and the exception would have no effect. The whole frame of the deed, the nature of the transaction and at least a part of the property received shows clearly to my mind, that such was the intention. The contract shows this, “You to have, all the property, except what, I reserve, that to be held in trust for me.” It cannot be supposed that she was willing, only to restrain his rights to all but the excepted property, and to have that so it should be his absolutely; if so, why did she put her “beds and bedding” in that class?' I think there is no doubt but the intention of the deed was to give her a sole and separate estate in the excepted property. Having Byllabas8, then a sole and separate estate in the said excepted property, as to such property she had all the rights incident to the ownership thereof, and could dispose of it as she pleased, the same as if she had been a feme sole, and this she might do without the assent of the trustee. Fettiplace v. Gorges, 3 Bro. C. C. 10; Leaycraft v. Hedden, 3 C. E. Green (18 N. J.) 552; Imlay v. Huntington, 20 Conn. 175; Vizonneau v. Pegram, 2 Leigh 183; Newlin v. Freeman, 4 Ired. Eq. 312. Lid Lucinda Armentrout dispose of the property ? The evidence clearly shows that she did make a gift of it to her brother. It makes no difference what kind of a gift it was, whether a donatio motiis causa, or a gift into vivos, it was a complete gift by a party, who had the right to make it, and gave a good title to the donee. But it is said she gave more than she had any right to give, being in excess of the $500.00 mentioned in the — 366 — “excepted” property. The evidence shows she did ; but the answer of the defendant claims such excess for board f°r the said Lucinda, and I think the evidence fulljr sustains the answer in this respect, and shows as the court below found, that the board amounted to more than the said excess. It is insisted by counsel for the appellant, that when Lucinda gave the $500.00 bond to her brother, it was in satisfaction of her board, upon the maxim that “a debtor is not presumed to make a gift” and that “adebtor should be just before he is bountiful.” A sufficient answer is that it was the debt of the husband, which he, and not his wife, was bound to discharge. I see no error in the decree of the circuit court, and am for affirming the same with costs, and $30.00 damages. The Other Judges CoNcurbed. Decree Aeeirmed.