In Chancery.-Cruger v. Douglas.

of her income an annuity of three thousand for and during the rest of his natural life, dollars, to be paid to him during his natural from and after the first day of November life. Notwithstanding this deed had all the then instant, and directs the trustees of her appearance of being a perfectly free and vol- estate to pay to her husband such moiety of untary act on her part, and, as he says, was the income accordingly, declaring the provisintended as an adjustment of all difficulties ion thereby made to be in lieu of the annuity between them, and to bring them together of three thousand dollars. This deed is a again, yet it would seem from her statements, matter of vital importance to the husband, that she executed it without any view to co- provided I am correct in my views as to the habitation, and that she still meant not to de- validity of the original deed of settlement, part from her purpose of living separate, pro- and as to the effect of the order of the 15th vided he accepted the deed and should under- of July, 1833 take to claim an irrevocable power over even so much of the income,

If such was her resolution at that time, it is certain, however, that she did not long adhere to it. On his proceeding to Henderson, soon after receiving the deed, she became reconciled, and they were again united, so that in November following they came to town, and took up their residence for the winter at her house, 55 Broadway, where they continued to reside in external harmony until some time in June, 1841.

If found to be a valid instrument, both upon the law. and the facts of the case, then he is entitled to the aid of the court in carrying its provisions into effect. But should it fail of support, so necessary to its validity, then there is nothing left for the husband to fall back upon within the province or jurisdiction of this court to enforce, unless, indeed, the court can reinstate the annuity which was surrendered when the deed in question was delivered; the grant of which annuity, however, is now as strongly impugned as is Then it was that she again separated from the deed which succeeded it. The form of him, and they have not since resided together. this last instrument, as a deed of appointment, The immediate cause of this, their last separa- is not objected to, but it is insisted in the first tion, does not very distinctly appear. A va- place that she had not the capacity legally to riety of circumstances may have contributed make such a deed, or any other instrument to it. Mrs. Monroe, who was present when purporting to convey or to dispose of the inshe left, says it was owing to some misunder-come. The power as expressed in and instanding about money matters-that neither tended to be conferred by the husband's orishe nor Mr. Cruger seemed to understand ginal deed of settlement, is broad enough to each other's views on money matters-that authorize her to dispose of the income as well Mr. Cruger expressed his disapprobation of as the principal either by deed or will, and it her going-opposed her going-but, never- is that sort of power which a married woman, theless, handed her to her carriage. notwithstanding coverture, is expressly authorized by the statute of powers, to execute by herself, without the presence or concurrence of her husband. 1 R. L. 735, sec. 110; Ib. 737, sec. 130.

But it is not very important at present to ascertain more particularly the cause. I only advert to the fact of their separation in connexion with other prominent matters that have occurred since 1835, in relation to the husband's acquiring an interest in or a control over the income of her estate, in order to come at that part of the case which I am now about to consider, and upon which the right and claim of the husband to any interest or ownership in the property entirely depends. I refer to her deed of appointment of the 19th of November, 1841, the last she ever executed, and by which, according to its purport, she revocably assigns, transfers, and appoints to her husband, in pursuance of the power contained in her post nuptial settlement with him (meaning his deed of the 29th of June, 1833), the one equal half part of the net income of all her estate real and personal,

But the objection lies deeper. It is based upon the disabling or prohibiting language of the 63rd section of the statute of uses and trusts, which it is contended renders her legally incompetent thus to part with or dispose of her income.

That section does, indeed, declare that "no person, beneficially interested in a trust for the receipt of the rents and profits of land, can assign, or in any manner dispose of, such interest," though where a trust for the payment of a sum in gross is created, the right and interest of a beneficiary may be assigned.

This provision of the statute applies only to rents and profits, or to sums in gross payable out of real estate, although by a subse

In Chancery.—Cruger v. Douglas.

virtually defeating the object of it, and the doing of that which is only an appropriation of the benefits resulting from it, in a manne compatible with its object and its creation. I think the latter is the sense in which this deed is to be regarded, and, consequently, that it does not fall within the prohibition of the 63rd section.

The other objections taken to the deed depend upon the circumstances under which Mrs. Cruger was induced to execute it.

quent statutory provision, the income of personal property is placed upon a similar footing, and subjected to the like rules. 8 Paige 85. The question is, therefore, presented, whether the deed in question is such an assignment or disposition of the income as the 63rd section has prohibited and rendered nugatory? The law having authorized the creation of trusts, and especially trusts for the purposes specified in the 3rd and 4th subdivisions of sect. 55, it became necessary to throw around them some guard against an improvident dis- She states in her answer (and in her cross position which the beneficiaries of such trusts bill the charges are substantially repeated) might be tempted to make of what was in- that having returned to the city on the 18th tended for their continuous support, and to of October, 1841, from her country residence, meet their constantly accruing and future she went immediately to the house of her wants, such beneficiaries being generally, per- cousin, Mrs. Kane, where she met Mr. Crusons of improvident habits, or under some ger, and had a very painful interview with condition of helplessness or dependence; and him. That at that time, as she believes, he hence the 63rd section was enacted. It was had made up his mind to live separately from probably intended, moreover, to support and give effect to the clause against anticipation, commonly introduced into deeds and wills, creating settlements for the separate use of married women, as to the effect of which clause, nice and difficult questions were liable frequently to arise. See Kent's Com. 5th ed. and 1 Bearan's Rep. 1.

No such clause appears, however, in the "deed in the present case, and the other branch of the mischief, which it was the policy of the 63rd section to guard against, seems to be equally inapplicable and foreign to the present purpose. The effect of the deed appointing one half of the net income to the husband is not to break up the trust, for the object of the trust is not thereby essentially or materially changed. The trust is still to endure. The trustees are to go on receiving the rents and income, and making the application thereof in moieties, according to the directions she has given and the appointment she has made, all of which is in conformity with the power conferred upon her.

This is very different from a sale of her interest under the trust. It is not a parting with the continuous and constantly accruing benefit it was intended to be to her, for a benefit in gross or an anticipation of all the benefit of the trust, and a termination of it, so far as she is concerned.

The opinion expressed by the chancellor, in Gott v. Cook, 7 Paige 538, and by Mr. J. Cowen in S. C. in error, 24 Wend. 667, appears to me to favor, the distinction which I make between putting an end to the original beneficiary's, interest under the trust, thereby

her, and to obtain as large a grant as practicable of her income, and for this purpose he engaged the services of Mr. Monroe, her brother-in-law. That Mr. Monroe, accordingly, alone, or conjointly with Mr. Cruger, instructed Mrs. Monroe her only surviving sister, to procure from her an appointment of one half of the income to the use of Mr. Cruger. That all the acts and proceedings of Mr. Monroe to accomplish that object were guided by Mr. Cruger, either directly or indirectly through the agency of Mr. Monroe. At the same time, by some indirect means, Mr. Cruger procured Mrs. Kane and Mr. Ogden to aid and assist him in his designs upon the income. That Mrs. Monroe, aided and seconded by Mrs. Kane and Mr. Ogden, addressed her and requested that she would settle upon Mr. Cruger one half of the income of her estate. To this she replied that, by virtue of an offer made in June previously through her counsel, Mr. Strong, and still subsisting, Mr. Cruger had the liberty to take nearly the whole of the income, and it was, therefore, unnecessary to apply to her for a smaller sum. (The offer in June alluded to involved a condition that, if accepted, she would live separate from him, and had, therefore, been rejected.) That her sister, Mrs. Monroe, treated such reply with ridicule and derision, stating that she had no right to give the whole, but was bound, in order to save herself from general censure, to give one-half. That Mrs. Monroe, so aided and seconded by Mrs. Kane and Mr. Ogden, pursued the application for a settlement of onehaif of the income upon Mr. Cruger, so un

in Cnancery.-Cruger v. Dougias.

terms, he held out to her sister and cousin, the idea that such settlement when made would satisfy his mind, restore harmony, and thus lead to a re-union between them; at the same time he well knew that she had determined not to live with him under such circumstances.

ceasingly and in so harrassing and importu- in order to secure the co-operation of her sisnate a manner as to leave her no peace or ter and cousin, and to avoid the odium of quiet. That she resisted the importunities accepting a settlement on such disreputable of her sister to the utmost of her ability; but at length her powers of resistance wholly failed her, and she yielded to the requisition of her sister, and directed her counsel (Mr. Strong) to draw the required settlement. She further says that Mr. Strong accordingly drew up an instrument bearing date the 26th of October, 1811, purporting to settle onehalf of the income upon Mr. Cruger for her life, instead of his life, which she executed, but which he refused to accept or receive.

She then says that the deed was not a free and voluntary act on her part-that it was obtained in opposition to her will, and by the persevering and vexatious importunities of her husband and his agents-that it was obtained fraudulently against good faith, and contrary to the true intent and meaning of what she claims to have been an ante-nuptial agreement and the husband's deed of 29th of June, 1833. That although no physical force was employed to compel her to execute the instrument; and admitting, as she does, that at the time of executing it, she was under no personal restraint or duress, and that she executed and acknowledged it with all the form and ceremony of a free and voluntary act, yet she says, it was by undue persuasion and coercion, growing out of his importunities and persecution of her for years, and his threats that he would continue to destroy all her peace, comfort and happiness, until she made such a settlement of her estate upon him as he should be content to accept, that she was brought to execute it.

That in this stage of the controversy she was again addressed by her sister, aided by her cousin and Mr. Ogden-that she was charged with duplicity in giving private instructions to her counsel to draw the instrument in such unsatisfactory form, and was censured for unreasonable obstinacy, and threatened with public odium; and with renewed and continual importunities, she was at last compelled, in order to secure her tranquility, to agree to make the settlement upon her husband, of one-half of the income during his life. That having so yielded, she sent for Mr. Strong and caused instructions to be given to him to prepare the deed of settlement accordingly. That the draft was prepared and submitted to Mr. Cruger, who instead of acquiescing in it, proposed a different deed of settlement, but on being informed that his proposed deed would not be executed, he finally, after considerable hesitation, and on Such are alleged to have been the means or about the 17th of November, signified to resorted to and practiced upon her to obtain Mr. Strong that he would accept as satisfac- the deed. If true there can be no doubt as tory the deed prepared by him; whereupon to the duty of this court in regard to the it was engrossed, and she executed and ac- transaction. The deed could not be allowed knowledged it under date of the 19th of November, 1811, and sent it to Mr. Strong, who delivered it to Mr. Cruger.

She then denies that Mrs. Monroe, Mrs. Kane and Mr. Ogden, or either of them, had any right to suppose that the deed could or would form a basis, just, reputable or otherwise, of a re-union between herself and her husband; on the contrary, she says, it necessarily formed a cause of continued separation, inasmuch as she had uniformly declared that she could not live with her husband so long as he persevered in possessing himself of a legal right to any part of the income of her

estate.

That in the summer previous, he had declined to receive a settlement on the condition that she was to live apart from him, and yet

to stand, much less would the court lend its aid in carrying it into effect. And here I may remark that much of what is thus alleged against the morale of the deed is either in denial of, or responsive to statements put forth in the original bill calling for an answer under oath. The burthen of disproving these denials and responsive assertions therefore rests upon the husband, and to this end he has called upon Mr. and Mrs. Monroe and Mr. Ogden for their testimony respecting the part taken by them, as well as by Mr. Cruger himself, in bringing about this arrangement and deed of settlement. Although these three witnesses are the persons chiefly implicated as conspiring with Mr. Cruger in this business, yet they are competent to testify, and their testimony must be believed unless there

In Chancery.-Cruger v. Douglas.

is other evidence to refute their statements, |ther interrogatory, she says she expressed

or upon the face of their own testimony it shall appear to be incredible.

herself to this effect: "Mrs. Kane, Mr. Ogden, Mr. Whetten, every one of us that loves you, wishes you, Harriet, to do this-do, Harriet, for all our sakes." She further says-" I did not say to her, You cannot maintain your own respectability, or that of your relatives, without making it; I had no view but for my sister. I urged her from the bottom of my heart to do what I asked of her. I used no argument but affection." In relation to the charge that these efforts of Mrs. Monroe's, to procure a deed from her sister, were stimulated by Mr. Cruger through the instrumentality or agency of Mr. Monroe, who instructed, guided or directed his wife's movements

that Mr. Cruger never at any time engaged his services or secured his agency to obtain for him half of the income of Mrs. Cruger's estate, or that he alone or conjointly with Mr. Cruger, ever instructed or directed Mrs. Monroe to procure from her sister such a grant. He says, that at no time whatever did anything pass between himself and Mr. Cruger on the subject, except when he spoke to Mr. Cruger about having some arrangement made that should be definite and unchangeable respecting the income-at which times Mr. Cruger declared himself disposed to leave the whole matter to Mrs. Cruger and her friends. He says, moreover, that in the frequent conversations between himself and Mrs. Monroe, he found that their views corresponded in relation to Mrs. Cruger; and that he never did advise Mrs. Monroe to use her influence and

Both Mr. and Mrs. Monroe freely admit in the course of their lengthy and searching examinations, that often and on various occasions during a series of years prior to the separation of the parties in June 1841, they did interfere and by their advice and influence endeavored to prevail on Mrs. Cruger to make a permanent and irrevocable settlement upon Mr. Cruger of some large portion of the income of her estate. That this they urged upon her frequently when the subject of her income became a matter of discussion and controversy between them, so as to threaten the loss of her domestic peace and happiness, in that respect, Mr. Monroe expressly declares and to become painful to the feelings of those so nearly and dearly connected with her as were Mr. and Mrs. Monroe and family-that this was done both verbally and by written communications in the most urgent and persuasive manner, but was always most kindly meant, from a belief that her own happiness would be promoted by it, and from a wish to see her placed upon high ground with respect to her husband and the opinion of the world. When Mrs. Cruger came to town in October 1841, and did not go to reside with her husband at 55 Broadway, where he then was, these efforts were renewed by Mr. and Mrs. Monroe, and particularly by the latter, in the hope of inducing Mrs. Cruger to make the settlement, and return to and reside with her husband, and thereby conform to the wishes of her best friends. Mrs. Monroe is asked, upon her cross examination, to give the sub-power of persuasion with Mrs. Cruger to efstance of the conversations which it appears she had with Mrs. Cruger on that subject two or three times shortly after she came to town, partly at Mrs. Monroe's house, 30 Varick-st., at one of which she thinks Mr. Cruger was present, and also Mrs. Kane, and at another Mr. Ogden and Mrs. Kane were present. She says the conversations were not very long, at least not all of them. She did earnestly entreat her sister to make the deed and place herself on high ground. It was her sister she thought of, to make right. The conversation most deeply impressed on her mind, It is unnecessary for the present purpose was one held in Mrs. Kane's house, when she to go more at length into the testimony of said, "My sister, only do right; put yourself these two witnesses. What I have thus staon high ground, and divide your income with ted comprises the substance of all that I deem Henry, giving him half that you cannot take material to show the character and kind of back; then try, and if you are not happy influence which they appear to have exerted with Henry, and be not contented, I will give with Mrs Cruger in producing the result him up and go to you." In answer to a fur-complained of by her.

fect any object with her; that Mrs. Monroe would attempt nothing of that sort which was not in accordance with her own views and her own feelings of affection towards her sister; that whatever he, Mr. Monroe, had done towards influencing or persuading Mrs. Cruger into a settlement, was done out of regard for her and her happiness; and most generally without the knowledge or concurrence of Mr. Cruger, except that Mr. Cruger had always declared that he would cheerfully concur in anything her friends might decide upon.

In Chancery.-Cruger v. Douglas.

The testimony of Mr. Ogden in regard enabled to take a high stand before the world. to the character of his interference and ad- In answer to the question, "Did you at that vice is not very different. He, it appears, time advise that the settlement should be for was an old and intimate friend of the Doug- his (Mr. Cruger's) life?" He says, "I did most las family. One who could have had no mo- distinctly;" and he was led to do so from a betive for advising Mrs. Cruger in any thing, lief that no permanent amicable adjustment except in that which he honestly and sincere- could be made which rested on the sole will ly believed to be right, and promotive of her or caprice of the party making the settlement. happiness and welfare. He was in New It was in pursuance of this advice that York during the whole of October, and as Mrs. Cruger gave directions to Mr. Strong, late as the 10th of November, 1841-on her solicitor, to prepare the deed which was which day he embarked for England. In October, and at least a fortnight before he sailed, he met Mrs. Cruger at Mrs. Kane's in Varick street. Mrs. Monroe was also there. He had taken leave of the ladies. Mrs. Cruger followed him to the door, and as he was on the steps going away, she urged him to return and converse with her on the subject of her existing difficulties with her husband, and to give her advice. At her pressing solicitation, resisting it, however, for some time, he agreed to listen to her story and did return into the house, and had a long conversation with her. Mrs. Kane and Mrs. Monroe were present. The conversation, most to the point, he says, was her declaration that she had always intended to settle the whole of her income upon her husband, revocable at her pleasure. He, Mr. Ogden, gave it as his opinion, that a certain part of her income, or a certain sum should in justice be settled on her husband during his life. After a great deal had oeen said, she agreed that the settlement should be of one half of her income, and solemnly declared that she would carry it into effect. She said, " Mr. Ogden, I will set down this very night and write orders to my solicitor to do so." He told her such haste was unnecessary, that to-morrow or the next day, after she had reflected on it, would answer the purpose. "I repeatedly told her (he continues) that my only cause for giving this advice was my friendship to her, and to set her right before the world. I told her that I frequently had heard it the subject of conversation, and that she was blamed for the conduct she had pursued. We parted on this occasion in the most friendly terms."

He further says, on his cross examination, that in the course of the conversation, he told Mrs. Cruger that he was speaking to her as her friend, and not as the advocate of Mr. Cruger, in whom he felt no comparative interest; that the advice he gave her was from a conviction in his own mind that it was right, and that he gave it to her that she should be

drawn and signed by her, under date of the 26th of October, 1841, purporting to be for her own life, and which was rejected. Afterwards, and on the 8th or 9th of November, Mr. Ogden had another interview with Mrs. Cruger at her brother's (Mr. William Douglas') house in Park Place. He there entered into a further conversation with her, in which he told her that he had understood a deed had been made out in favor of Mr. Cruger, during her life, and inquired whether she understood that to be the meaning of the advice he had given her. She replied, that in the directions to her solicitor she had not ordered him to make out the papers in that way. He then remarked, in that case the solicitor was unworthy of her confidence, as he had presumed to make a change in her intentions. She persisted, however, that the papers should continue as they were drawn. On that account the conversation became an animated one. Mrs. Cruger was greatly excited, walked the room, and expressed herself very strongly, and in terms highly derogatory to the character of her brother-in-law, Mr. Monroe. To which the witness replied with some warmth, though in other respects, he says, he spoke plainly in the language of truth without passion or feeling. In reply to her exclamation that "all the world had turned against her, and that I even had joined her enemies," he said, "No, Mrs. Cruger, you are your own worst enemy,-if any friend, however dear to you, ventures to differ in one single point from your opinion, you set them down at once as an enemy."

The witness says further, it was an angry conversation towards the close of it. It can hardly be said to have terminated amicably, for she persisted in her intentions, and he had his views on the subject which were opposite to those entertained by her. Up to the time he parted with her, he understood that she did not yield her assent to making the settlement for his (Mr. Cruger's) life. Her brother, William Douglas, and Miss Bleecker were