Griswold and Winn, for the appellees.

STAPLES, J. The complainants, who are the appellants here, base their claim to relief upon two distinct grounds, which will be considered in the order in which they are presented.

The first ground applies exclusively to Mrs. Jane D. Winston. Her position is, that Richard M. Winston was her general agent and manager; and as such, obtained control of her funds; that he used her credit and money to the amount of twelve thousand five hundred and fifty dollars and seventyfive cents, in the purchase of the several interests in remainder in the "Poplar Springs estate;" and having taken the deeds in his own name, he held the legal title subject to a resulting trust in her favor, to the extent he had so used her credit and money; and to that extent there is a failure of consideration in the bond which is the subject of controversy.

same day on which the personal property of Richard M. Winston, deceased, was appraised; this personal property being at the house of Mrs. Winston. Several witnesses say that this was in March, and some of them refer to circumstances as confirming them in their recollection. But Mr. Lyons' note, sending the papers to Bickerton L. Winston, is dated January 12th; a receipt given by the appraisers of the property, to Bickerton L. Winston, for their fees for appraising it, is dated the 16th of January, and two of them say they were paid on the day the appraisement was made; and there are two receipts of R. O. Doswell, the clerk of the court and also a notary, in one of which, under date of the 16th of January 1863, he charges B. L. Winston, adm'r of R. M. Winston, for taking the acknowledgment of said B. L. Winston, to the deed to Miss S. P. Winston, and also the deed of trust from her to B. L. Winston; and under the same date he charges B. L. Winston, adm'r, &c., of R. M. Winston, to tax On the other hand, it is claimed by the 116 on the deed of trust from *Sallie P. defendants, that four of the interests in Winston. The engagement between remainder were purchased by Richard M. Thomas L. Gregory and Miss Sallie P. Win-Winston, with his own means, or upon his ston occurred on the 20th of January, and own individual credit. their marriage took place on the 22d of April 1863. His attentions to her appear to have become known in December 1862.

As to the other in

taken, including the parties to the controversy. This testimony is conflicting and wholly irreconcilable. As might have been expected, a bitter and protracted family feud is the result. I do not propose to discuss this testimony. Discarding entirely the depositions of the parties, and also the

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evidence of the witnesses where there *is any conflict, I shall base my conclusions upon admitted or well established facts.

terests, it is admitted they were paid for with money furnished by Mrs. Jane D. Winston; but it is insisted, the money The cause came on to be heard on the 12th thus furnished was given to Richard M. In supday of March 1870, when the court held that Winston by way of advancement. the title to the several interests in remainder port of these respective pretensions, the in the bill and proceedings mentioned, ex-depositions of many witnesses have been cept the interest of Sallie P. Winston, as to which the court reserved its decision, was in Richard M. Winston, at the date of his will, and at his death; and that there was no trust or equity therein, resulting in favor of Jane D. Winston. That Bickerton L. Winston, as adm'r with the will annexed of Richard M. Winston, deceased, had full authority to sell and convey said interest, on the 16th of January 1863, and that his deed executed on that day, bearing date the first of January 1863, vested a complete title to the said interest in Sallie P. Winston, now Sallie P. Gregory; and that the bond and deed of trust were fairly executed, and for valuable consideration; and were executed without any intention to defraud her intended husband, Thomas L. Gregory; and are therefore legal, valid and binding contracts, and not in fraud of the marital rights of said Gregory. And reserving the question whether the bond should not be credited as of its date, with the amount of the bond given by R. M. Winston and Jane D. Winston, for Mrs. Gregory's interest in remainder; and having a statement made, showing that there would be due of interest on the bond, up to January 1869, if Mrs. Gregory's interest was credited on the bond, the sum of $893, the court dissolved the injunction as to that sum.

From this decree Thomas L. Gregory and Jane D. Winston applied to this court for an appeal; which was allowed. *Young, for the appellants.

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V R, 23 Gratt-27

It may be safely assumed, that Mrs. Jane D. Winston, before the sale to her daughter, Miss Sallie P. Winston, was appraised of the contents of Richard M. Winston's will. She knew he claimed "Poplar Springs" estate in remainder, as his property; that he had authorized his executor to sell it; and she knew the terms upon which the sale was to be made. With this knowledge, she made no objection, when Miss Sallie P. Winston notified the executor of her wish to make the purchase upon the terms proposed. The papers were read over by her, or to her, at her own house, before they were signed and executed by the contracting parties. She knew all the facts; she was perfectly acquainted with the whole arrangement. And yet she never intimated to the executor or to any one else, so far as this record discloses, that "Poplar Spring" belonged to her in remainder; that it was purchased with her money; and that her son had violated his duy and his contract in taking the deeds to himself. So far from it, she united with her daughter in the bond given for the purchase money;

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and she saw, without objection or com- It is also insisted, that Mrs. J. D. Winplaint, the deeds executed by the parties, ston was, at the time of the execution of acknowledged and placed on record. Now, the bond and deed, without counsel and supposing that Mrs. Winston did not at the ignorant of her rights. But, whose fault time fully comprehend the nature and is it she was without counsel? She had bearing of the deeds and the effect of what ample opportunity of procuring such advice she had done, she certainly did so after- and assistance as she needed. Her friend wards. She had an interview with Mr. and adviser, Dr. Price, was present at the James Lyons, for what precise purpose time, invited there by the executor because does not appear, and he explained to her he occupied that relation. She did not conthe nature of the several papers prepared sult with him; she did not ask for delay. by him. She tells us, however, she was no Now, if the most solemn acts of parties are better satisfied than before. And yet after to be avoided upon averments of this sort, this, she insisted upon paying the executor what contracts can ever be enforced? How a part of the bond in Confederate currency, is such an averment to be answered? How not because she desired to rid herself are the courts to define the degree of intelof a burdensome obligation upon *the ligence competent to a valid contract made easiest terms, but for the reason, as in the absence of counsel and without suffishe states, it was her understanding the cient information? No one, I think, can debt was contracted with reference to that question Mrs. Winston's purity of character currency. The interest was also paid by and integrity of purpose. This record shows her in like currency to the close of the war. that she is a lady of great intelligence and After the war was ended, it was paid in of high social position. But these considUnited States currency until August 1868. erations cannot overcome the difficulties in The various payments thus made by her, her way. To maintain the claim now asamounted to more than three thousand dol- serted, she must establish that her own son, lars. During all the time between the death in violation of his duty and his promises, of R. M. Winston, in 1862, to the filing of appropriated her means and money; that this bill in 1869, we do not hear of any he caused deeds to be made to himself for claim asserted by Mrs. Winston to the property rightfully hers; that she was enestate in question, or to a resulting trust tirely ignorant of his proceedings for years in her favor. No complaint is made, no afterwards, although the deeds were exedissatisfaction expressed, with what had cuted by members of the family and duly placed upon the public records of the county. She must satisfactorily explain why she expressed no disappproval of the purchase made by her daughter; why she united in executing the bond given for the purchase money; why it was she punctually paid the interest for so long a period without objection; and why it was, for more than seven years, she not only acquiesced in, but actually admitted the claims asserted by Richard M. Winston and his representatives. This record contains no explanation, or even attempted explanation, of these matters.

been done.

Against this imposing array of facts and circumstances what have we? A single unguarded statement made by Mrs. Rosalie S. Winston, in her deposition, is relied on to annul the deliberate contracts of the parties evidenced by instruments of the most solemn nature, and an acquiescence of seven years. Upon her examination she stated, it was part of the arrangement that compensation should be made by her husband, Richard M. Winston, to Miss Sallie P. Winston, by paying her an interest on an estimated principal beginning at the same age, as such advancements were made to Richard M. Winston, until an equal amount of principal should be given to both. I do not attach the slightest importance to this statement, because it is obvious the witness did not understand the drift of the question asked her, or of the answer she gave. Before the examination was concluded, she fully explained her meaning. In her answer to the bill, she states, with great particularity, her understanding of the whole arrangement, and all the facts connected with it. And it is apparent that she did not intend, as a witness, to contradict the statements made in the answer. Besides all this, the fact supposed *to be proved by Mrs. Rosalie S. Winston, is no part of the case made in the bill. The plaintiffs' claim to relief is not based upon any supposed arrangement for the benefit of Miss Sallie P. Winston, but upon the ground that there is a resulting trust in favor of Mrs. J. D. Winston, because the estate was purchased with her money and upon her credit.

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It is very manifest that Mrs. Winston desired and intended that her son should become the owner of the "Poplar Springs estate," after her death. To this end she advanced him the means to purchase the interests in remainder. She was amply able to do so, out of the profits of her estate. She intended also to advance her daughter; and but for the war, she would easily have accomplished that purpose also. The losses she sustained, in common with many others, have prevented the fulfilment of these generous intentions. It is greatly to be deplored. But this change of circumstances cannot convert into a loan that which was simply a gift; nor raise a resulting trust in opposition to the acts and uniform declarations of the parties for a long series of years.

Under all these circumstances, satisfied as I am that the facts do not sustain Mrs. Winston's claims, I do not deem it necessary to consider the questions of law relating to resulting trusts, so elaborately discussed by the learned counsel.

In this State the point has never been decided; though the case of Fletcher v. Ashby, 3 Gratt., leads to the conclusion, that in the opinion of the court the distinct ground of relief in all this class of cases, is the meditated fraud practised by the wife upon the intended husband. Judge Allen, speak-date the 12th of that month. The evidence ing for the court, places the decision upon the ground "that the evidence in the record did not show that the deed executed by the wife, prior to the marriage, was executed with intent to commit any fraud upon the marital rights of the husband."

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was

an engagement of marriage between them. Kerr on Frauds and Mistake, 219. It may be conceded, however, that the bond and deeds were executed in March 1863, during the treaty for the marriage. Does the record furnish evidence of any such fraud as invalidates the bond, as to Dr. Gregory; or indeed of any fraud whatever? It is unnecessary to enter into any extended discussion of the evidence bearing upon this point. A very brief consideration of the facts will dispose of this question.

picion upon their correctness. It is recites the bond, its date and amount, and impossible to overcome such facts by all the facts and circumstances of the the testimony of four or five wit- transaction. If, then, the month of March nesses, speaking solely from recollection. be regarded as the period of entering into the And I am satisfied the papers were signed, contract, according to the pretensions of the and the contract completely executed, on appellants, it appears that the parties, more the 16th of January 1863; and not in March. than a month before the marriage, placed And now as to the engagement or treaty their deeds upon the records of the county; for the marriage. Dr. Gregory tells us, he where they were open to the inspection of first addresed Miss Winston the latter part the intended husband and the entire comof December 1862. She, however, did not munity. I do not mean to say that this give him a definite answer until the Sat- registration is to be regarded as constructive urday after the 20th of January 1863; at notice to Dr. Gregory. Whether it would which time the engagement was formed. It have that effect under our statutes, it is is clear, then, that there was no treaty of unnecessary now to decide. But clearly the marriage when the purchase was made and promptness displayed in placing the conthe bond executed by Miss Winston. Now, veyances upon the record, does not indicate it is well settled, that the equity in favor of any expectation or desire to keep the transacthe husband does not arise, unless it can be tion concealed from the intended clearly made out that at the time of the 127 *husband. O'Neill v. Cole, 4 Maryl. conveyance of her property by the wife there R. 107. Another circumstance deserves consideration in connection with this question of fraud. It would seem to have been the earnest desire of Mrs. Winston and her children to retain "Poplar Springs" in the family. With this view, Richard M. Winston became the purchaser of all the interests in remainder; his mother assisting him in paying the purchase money. In the event of his death, Richard M. Winston desired that his sister should become the owner; and in his will he offered the estate to her upon substantially the same terms he had purchased it. Miss Winston, with the consent of her mother, accepted the offer. Mrs. Winston's determination, no doubt, was to advance the daughter to the same extent she had advanced the son. She expected to pay the interest accruing upon the bond, as indeed she did pay it down to August 1868. As to the principal of the debt, that would ultimately belong to her or her daughter; and in this way be extinguished. But if this expectation should not be realized, the estate itself was bound for the debt under the deed of trust, and constituted ample security for its payment. As the parties were then situated, with means and resources they then commanded, these were very reasonable calculations. The contract was such as they might reasonably expect to perform without inconvenience or loss to themselves or others. And I have no idea that either of them, or any of the parties to this family arrangement, ever entertained a thought that Dr. Gregory could in any way be injured or affected by the obligation given for the purchase money. It is very clear there is not the slightest ground for the imputation of fraud upon any one connected with the transaction.

The will of Richard M. Winston was admitted to probate early in the spring of 1862. At what period its contents were first made known to Mrs. Winston and her daughter is a matter of controversy. Miss Winston, however, in the summer of that year, stated to a friend she expected to become the owner of "Poplar Springs," that she had promised her brother Richard to take it in case of his death. It is very certain, that before the close of that year, the parties had agreed upon the sale 126 and purchase, and that Mr. James Lyons, as a mutual friend, should prepare the necessary papers. Mr. Lyons was consulted, and promised to have them ready by the first of January, 1863. The papers were, however, not prepared until the 12th, and were antedated by the draughtsman, to correspond with the time first agreed on. Now, whether the contract was executed in January, or whether it was executed in March, it was executed in accordance with an agreement entered into and fully understood by all the parties, before any treaty of marriage, and indeed before Dr. Gregory had made any declaration of his intentions. Under these circumstances, it would seem impossible that any fraud upon his marital rights could have been meditated. See Waller v. Armistead's adm'r, 2 Leigh, 11.

The only remaining question to be considered is, whether the bond in controversy was, according to the *understanding of the parties, to be discharged in Confederate notes. There is no proof in the record of any understanding on the subject. As usual the parties differ in their construction of the contract. We must, therefore, look to their conduct and the other circumstances of the

Again: It appears that the deed of the 128 executor, conveying the property to Miss Winston, and the deed of trust executed by her, were acknowledged before the deputy clerk, and admitted to record on the same day they were executed, or certainly within a few days thereafter. The deed of trust |

case to ascertain the meaning of the obli- ANDERSON, J. Even if the testimony gation they have executed. There is no of Dr. Gregory and his wife, and of Mrs. doubt but that the price agreed to be paid Jane D. Winston, is excluded, and the case by Miss Winston, estimated in a sound cur- is to rest upon the testimony of the appelrency, is an extravagant one. It is, how-lees, I think it is evident that the money ever, about the same Richard M. Winston which R. M. Winston received from his paid the devisees for their interests in re- mother, to purchase the interests in remainder. By his will, executed in 1861, he mainder in the "Poplar Springs" farm, (Richard M. Winston) offered the estate to was advanced to him with the understandhis sister upon the same terms at which ing that his sister should be equally he had purchased it. It is very certain he advanced; and then, and not until did not mean Confederate currency, as no 130 *then, it was to be his absolute propsuch currency was in existence when the erty. I think this is shown by the will was made. Miss Winston, in accepting testimony of Mrs. Rosalie S. Winston, the the offer, must be regarded as doing so widow of Richard M. Winston, whose inupon the terms proposed. The executor terest is directly opposed to this theory; was not authorized to suggest or accept any and her testimony should, therefore, be other. Indeed it was no part of the exec- taken most strongly against her. And utor's duty to propose terms; but solely to there is nothing in her answer, or in the make them known. He was not negotiating testimony of the other witnesses, in conflict a sale, but consummating one proposed by with it. his testator.

It is also to be borne in mind, that the principal of the debt was only to be paid at the death of Mrs. Rosalie S. Winston-an uncertain event. It is hardly presumable that the executor would receive, or agree to receive, a sum thus payble and well secured, in a currency subject to a daily depreciation. Nothing in the record gives the least countenance to such inference or conclusion.

It is true that Mrs. Winston made a tender of five thousand dollars, some time in the year 1864; which was refused by the executor. The bond was not then due, and there was not the slightest pretence of right in the tender. But after this, and after Mrs. Winston had consulted 129 *counsel on the subject, she continued to pay the interest punctually during the war in Confederate currency. after the close of the war she paid in the present currency the interest for three years upon the whole amount of the bond. These circumstances all the facts of the case, lead irresistibly to the conclusion that the bond was executed without reference to Confederate currency, and was to be paid in the circulating medium of the country, at the period of its maturity.

It

She says the first payments were made by R. M. Winston, with his own money. Afterwards they "were made with the money loaned him by Mrs. Jane D. Winston. was also a part of the arrangement that compensation should be made to Mrs. Sallie P. Gregory, by paying her an interest on an estimated principal, beginning at the same time-at the same age, I mean-as such advancements were made to her brother, until an equal amount of principal should be given to both."

There seems, then, to have been an arrangement or agreement between Mrs. Winston and her son and daughter, as to the terms or conditions upon which she would loan or advance money to her son, to buy up the remainders; and this before he received one dollar of her money for that purpose. And the witness seems to give And here an unvarnished representation of what that arrangement was. It is, in effect, that the mother would loan money to her son for that purpose, upon condition that his sister was to be made equal, when it was to be his absolutely. And until that could be done, the mother was so intent upon exact equality, that she made it a condition that her daughter, when as old as her brother was when advanced, should receive interest upon the same amount which should be loaned or advanced to him.

as

For these reasons I am of the opinion there is no error in the decree of the Circuit court, and that the same should be affirmed. The money she proposed to allow him to In considering the case I have not deemed use in the purchase of these shares, was it important or necessary to pass upon the hers, and was not to be his, until his sister exceptions to the depositions. These exwas made equal. The annual profits ceptions present novel and difficult ques- 131 of the estate was hers also; and the tions, only to be decided after a very whole was to be bound, to make the deliberate consideration, which the court daughter equal with her brother. This, I has not been able to give in this case. My think, is deducible from the answer opinion is based upon facts fully estab- given, but is made clearer by her answer lished, without reference to the testimony to the next question, to wit: "Who was given by the parties. If we should, how-to make that compensation to Sallie P. ever, consider that testimony, it would not Winston?" The answer is: "My husband, change the result. To say the least, it is I suppose." This she immediately qualivery conflicting; and being so, the undis- fies thus: "The estate was bound for this puted acts and declarations of Mrs. Jane D. payment until she was made equal.' What Winston and her daughter, Mrs. Gregory, estate? The estate of Mrs. Winston. And the instruments executed by them of the this very money, which she proposed to most solemn nature, must be regarded as advance to her son, upon the terms that her conclusive of the controversy. daughter was to be made equal to him, and