
27 U.S. 595 (____)
2 Pet. 595
ENGLISH, SMITH, MACKALL AND HOFFMAN, APPELLANTS
vs.
CATHARINE FOXALL, APPELLEE.
ENGLISH, SMITH, MACKALL, HOFFMAN, M'KENNEY AND OTHERS, APPELLANTS
vs.
CATHARINE FOXALL, APPELLEE.
Supreme Court of United States.

*602 The cases were argued by Mr Key for the appellants and by Mr Jones for the appellee.
*603 Mr Justice THOMPSON delivered the opinion of the Court.
These cases come before the Court on appeal from the circuit court of the district of Columbia, and have been argued together. The first was a bill filed by Mrs Foxall against the appellants, as trustees in a marriage settlement contract, entered into between her and her late husband Henry Foxall, deceased. The object of this bill was to compel the trustees to carry into effect the marriage contract, according to her construction of it, by separating $37,038 from the general mass of her late husband's estate and investing the same in stock of the United States.
The appellants, in their answer, admit that they have received funds of the estate of Henry Foxall, to a much larger amount than the $37,038, but allege that they are also trustees under the provisions of the will of Henry Foxall, and have not invested it in stock of the United States, because it could not be done without great loss; and that they considered such an investment injudicious and prejudicial to the estate and to the rights of others interested in the residuum of the estate, and its income. And they aver that they have securely vested in real securities and bank stocks, producing an interest of six per cent. the whole of the personal estate except $22,645 in United States stock, purchased by H. Foxall in his life time. They admit they have ample funds, and are willing to make the investment required by the appellee, if the construction of the deed of settlement, which she contends for, should be deemed by the Court to be correct.
With this answer, and referring to it, was filed the cross bill in the second cause, in which the trustees in the marriage settlement, and Samuel M'Kinney, who are the executors named in the will of Henry Foxall, together with *604 sundry other persons, who are the cestui que trusts under the will, are complainants, and Catharine Foxall defendant.
In this bill the appellants set forth the will of Henry Foxall, and aver that by it the whole real and personal estate of the testator, is bound to secure to the appellee her annuity. That the investment in United States Stock of the $37,038 would occasion a loss in the income of the whole estate of six or seven hundred dollars a year, which would fall, according to the will, upon the other cestui que trusts. They deny the right of the appellee to claim the benefit of the provision of the settlement requiring her approbation to the investment, and also that of the will to make up the deficiency, and thereby throwing the loss of such investment upon the residue of the estate; averring the two provisions to be inconsistent, and requiring the appellee to elect between them; and praying that if her bill, already filed, be considered an election to take under the settlement, and the investment prayed by her shall be decreed, that it may be further decreed, that she shall receive the interest of the same, so to be invested, in bar of all claim upon the residuum of the estate, under the provisions of the will for any deficiency.
The answer in this case denies the inconsistency between the provisions of the will and the marriage settlement, and claims that the appellee is entitled to the benefit of both. That she has the right to choose the funds for investment, and to look to the residuum of the estate to make good the deficiency that may arise from the investment not producing six per cent., so as to pay her annuity of $2,222.22 cents.
The court below decreed in the first cause, that the appellants, as trustees in the will, should transfer to themselves, as trustees in the marriage settlement, the sum of $37,038, and should invest the same in the purchase of stock of the United States, and pay the dividends from time to time, as received, to Catharine Foxall, for and during the term of her life; and that the appellants should make the investment of the said principal sum, jointly in the names of themselves and the said Catharine; and cause the trust upon which the same is to be invested, to be expressed in the certificates of investment, and upon the books of the treasury department. And *605 further, in case the said principal sum of $37,038, so invested, should be found insufficient to raise and pay the annuity of $2,222 22 cents, that the deficiency should from time to time be made good out of the residuum of the estate, &c. And in the second cause, the court decreed the bill to be dismissed. From both these decrees, appeals have been brought to this Court.
The two questions which arise upon these cases are:
1. Whether the appellee, Mrs Foxall, has a right, under the marriage settlement, to require the trustees to separate the $37,038 from the general mass of the estate, and invest the same in stock of the United States.
2. If such investment should be insufficient to pay her the annuity of $2,222 22 cents, has she a right to have the deficiency made up, out of the general estate, either under the marriage settlement, or under the will of her deceased husband.
The answers to these questions will depend upon the construction to be given to the marriage settlement, and the will of Henry Foxall.
The settlement recites, that a marriage was intended to be solemnized between Henry Foxall and the appellee, then Catharine Holland; that upon the treaty for such marriage, it was agreed between the said Henry Foxall and Catharine Holland, that he should provide and settle on her, in case she should survive him, an annual income of $2,222 22 cents, equal to £500 sterling, in the nature of a jointure for her, for life, and in bar of dower, &c.; and also reciting, that in part performance of said agreement, the said Henry Foxall had made his bond, in the penalty of $74,116, to the trustees named in the settlement, to be void on payment by his executors, within six months from his death, to the said trustees of $37,038, with interest at six per cent. from his decease. It is then declared by the deed, that in case the said Catharine Holland should survive the said Henry Foxall, the trustees should stand possessed of said bond, and the $37,038, to be received by them, upon trust, to place out the same, when it shall come into their hands, at interest, on freehold securities, or invest it, or any part of it, in the purchase of stock *606 of the United States of North America, or bank stock there, with the approbation of said Catharine Holland; and to call in and re-place, and re-invest the same, and the produce thereof, from time to time, upon or in such securities or stock, with the approbation of the said Catharine Holland; and to pay the interest and dividends of said sum, securities or stocks from time to time, as the same shall be received, to her or her assigns, or permit her or them to receive such interest or dividends for her life, for her separate use.
That the appellee has a right to require the $37,038 to be separated from the general mass of the estate, and invested in funds for her use, according to the trusts declared in the marriage settlement, cannot admit of a doubt.
The circumstance that the trustees are also executors named in the will, cannot affect the rights of Mrs Foxall. This contract was entered into in the year 1816, long before the will was made, or it could be known who would be appointed executors; and besides, the trustees are not the only executors. But it would be immaterial if they were. They are acting in separate and distinct capacities, and are bound to execute the respective trusts according to the provisions of the marriage settlement and the will. This settlement was accompanied with a bond given by H. Foxall, by which he bound his executors to pay over to the said trustees the $37,038, within six months from his death. And the settlement declares that the trustees shall stand possessed of said bond, and the $37,038 to be received by them upon trust to place out the same, when it shall come into their hands, at interest, &c. in the manner therein directed. Whether Mrs Foxall had a right to control the investment of this money when it came into the hands of the trustees, may admit of more doubt.
The trust declared is, that the $37,038, when it shall come into the hands of the trustees, shall be placed out at interest on freehold security, or invested in the purchase of stock of the United States of North America, or bank stock there, with the approbation of the said Catharine Holland; and the re-investments, when necessary, were to be made in like manner with her approbation; and the interest and *607 dividends to be paid to her, during her life, for her separate use.
The question is not whether she is at present in danger of losing her annuity, nor does she in her bill charge the trustees with misconduct. She is, in judgment of law, a purchaser of this annuity, her rights rest in contract, and she seeks to have that contract carried into execution. And whether this will work an injury to third persons or not, cannot control her rights, secured to her by the marriage settlement. When this contract was entered into, there was no existing interest in any third parties. And no subsequent act of one of the contracting parties, can change the rights of the other. This fund, or the securities or stock in which it should be invested, were, after her death, to be transferred to the executors or assigns of Henry Foxall. But no disposition which he could make of them, could abridge the rights of Mrs Foxall under the settlement. What then is to be understood by the stipulation, that the investment was to be made with her approbation? That she was to have some agency in this investment, cannot be questioned. And is it an unreasonable interpretation to say, that she was to have a controlling agency, within the limitation prescribed by the contract. She has not an arbitrary and unlimited discretion. The investment is restricted to three objects: freehold securities, United States stock, or bank stock; and the trustees are not authorised to make any other investment. Nor can she approve or disapprove of any other. All such acts, both in them and her, would be without authority. She is the party beneficially interested in the investment; and it is fairly to be presumed, that her intended husband meant to leave it to her to elect between the different objects of investment. It cannot be presumed, that she would withhold her approbation from all, and if she did the loss would be her own, and not to the prejudice of any one else. It is very probable, that different persons, with equally honest and upright motives, might differ in opinion with respect to the three different modes of investment pointed out in the settlement. And when that occurs between Mrs Foxall and the trustees, one *608 or the other party must yield: and the contract must determine their respective rights. That declares, that the investment is to be made with her approbation; which would seem necessarily to imply, that it could not be made without it, and, at all events, not directly against it. And such appears to have been the construction put upon it by the trustees themselves. For in July 1824, after the death of her husband, they wrote her two letters; one in their character of executors, and the other as trustees in the settlement. In the first they say, "The executors of your late husband are desirous of paying over to the trustees of the marriage settlement the sum of $37,038, according to the directions of the will. It is deemed necessary that you should give instructions to the trustees named in the marriage settlement, before they can feel themselves authorised to invest the money." And in their letter, written as trustees, they say, "The executors are ready to pay over the sum of $37,038 to the trustees named in the marriage settlement; for the purpose of providing the annuity secured to you in the settlement. In which it is stipulated, that we are to place it out at interest, on freehold security, or invest it in the purchase of stock of the United States of North America, or bank stock there, with the approbation of Mrs Foxall. We are, therefore, compelled to wait for your instructions."
In September following she answered their letters, in which she says, "I acquaint you that in the judgment of my late husband, according with my own, the stock of the United States of North America is preferred by me, to freehold security or bank stock; and that I shall approve of the investment of the principal sum in that fund, and not on real security of bank stock, and beg it may be so invested." We think the trustees were bound to make the investment according to this request. That it was a right secured to her under the marriage settlement.
We will not say, but that a state of things might exist in which a court of chancery would be authorized to control her election: as if she should act from mere caprice, and with a manifest purpose of throwing a loss upon the residuum *609 of the estate. But there is nothing in this case to warrant such an imputation against her. And it is not very certain, that she even erred in judgment, if she had herself to sustain the loss. The object of the settlement was to give her a certain, safe and secure income. And it was not unreasonable for her to place more confidence in government stock, than in mortgages, where it is well known there is less punctuality in the payment of interest; or in bank stock, with the hazard of insolvency. She acted, as she states in her letter to the trustees, according to the judgment of her late husband; and which no doubt had great influence with her, in preferring such investment. And the sincerity of his advice is manifest from the circumstance, that he left, as a part of his estate, upwards of thirty-two thousand dollars in United States stocks.
2. The next inquiry is, whether, if the investment of the $37,038 in stock of the United States should be insufficient to raise the annuity of $2,222.22, the deficiency is chargeable upon the residuum of the estate.
In determining this question, it is unnecessary to say, how it would stand if the claim rested entirely upon the marriage settlement.
The provision intended to be made for Mrs Foxall, was clearly an annuity; and where that is the nature of the settlement, the cases in the books are very strong to show how far courts of equity will go to guard against any deficiency. But in the present case the will of Henry Foxall puts that question at rest.
This will bears date the 12th of April 1823, the first part of which is as follows, "I do hereby ratify and confirm, in every respect, the settlement made upon my marriage with my dear wife Catharine, and do direct the provisions and trusts of the same, and the conditions of the bond entered into by me upon my said marriage, to be faithfully performed. I do farther direct, that if the sum of $37,038 secured to be paid to the trustees of said settlement, should at any time, and from time to time, be found insufficient to raise within these United States, and bring into the hands of the said trustees of said settlement, there, the clear annual sum *610 $2,222.22, the annuity secured to be paid to my said wife by the said settlement; then and in such case, the trustees of this my will, do and shall from time to time transfer to themselves as trustees of said settlement, and out of the residuum of my estate, such sum or sums of money, as may from time to time be found necessary, to make up any deficiency there may happen to be between the current amount of the interest and produce of said principal sum, and the amount of said annuity; so as that, in no event, less than the said sum of $2,222.22 shall be annually raised for my said wife or for her benefit within the United States."
It is difficult to conceive how a more ample provision could have been made, to secure to the appellee the full amount of her annuity, and is a strong corroboration of what she stated to the trustees, that in selecting United States stock for the investment, she acted in accordance with the judgment of her late husband. For, it is admitted, that when the will was made, government stock was above par, and that the stock of the local banks of the district of Columbia might be so purchased as to pay six per cent. interest, and that this was known to the testator, H. Foxall. A deficiency must therefore necessarily arise from an investment in government stock, but not from an investment in bank stock; and his being so very particular in providing by his will for a deficiency, shows he had reasons to believe it would occur.
It has been urged, by the appellants' counsel, that the provisions of the deed of settlement and of the will are inconsistent; and that the appellee is not entitled to the benefit of both, but must make her election between them. That she cannot choose the fund for investment under the deed, and throw the loss from such investment upon others under the will.
It is not perceived how this can in any sense be considered a case for election. There is no inconsistency whatever between the two provisions. The will expressly refers to and confirms the settlement, and provides for any deficiency that might occur, by reason of an investment that would not raise the stipulated annuity. There is nothing in *611 the will affording the least colour for the conclusion that the testator intended any provision therein made for his widow, should be in satisfaction of the settlement; but clearly as an accumulated bounty over and above it.
Again, it is said the will only authorises payment of the deficiency, when the funds shall be found insufficient to raise within the United States the clear income of $2,222 22 cents; and that the proofs taken in the cause show that the funds are sufficient, and are now so invested as to produce that sum. The answer to this objection is given in the examination of the first point, that such investment was not authorised under the marriage settlement, it having been made without the approbation of the appellee, and directly against her instructions. We are accordingly of opinion, that the appellee has a right to claim of the trustees in the marriage settlement, by virtue of the will of her deceased husband, out of the residuum of his estate, whatever the annual amount of the product of $37,038, invested in stock of the United States, shall from time to time fall short of the annuity of $2,222 22 cents, secured to her in the marriage settlement.
The merits are therefore with the appellee in both cases, and the only difficulty presented is, as to the forms of the decree in the first cause.
The bill in that case, filed by Mrs Foxall, is founded altogether upon the marriage settlement. It prays a discovery as to the situation of the fund of $37,038, and that the whole of it may be invested in stock of the United States, and concludes with a prayer for general relief; but sets up no claim under the will for any deficiency.
It is in the cross bill that the question in relation to the deficiency arises, under the will. This bill was filed for the purpose of compelling Mrs Foxall to elect between the provisions of the marriage settlement and those of the will. The appellants, in their answer to the first bill, refer to the cross bill and the will set out therein, and pray that they may be taken as a part of their answer, and that the two causes may be heard and determined together. They are, however, two distinct causes, with additional parties in the *612 cross bill, and require separate decrees. The decree as to the deficiency, cannot be sustained, unless it can be done under the prayer for general relief. There is no doubt, but that under the general prayer, other relief may be granted than that which is particularly prayed for. But such relief must be agreeable to the case made by the bill; and there is nothing in the first bill to sustain the particular relief granted as to the deficiency. This part of the deed must therefore be reversed. The residue is affirmed, omitting the name of Mrs Foxall in the investment directed to be made. There is nothing in the marriage settlement which entitles her to be joined with the trustees in the investment.
In the other cause the decree dismissing the bill is affirmed.
In the first case the following decree was rendered.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, this Court is of opinion, that the decree of the said circuit court in this cause is erroneous in this, that there is nothing in the first bill to sustain the particular relief granted as to the deficiency; whereupon it is considered, ordered and decreed by this Court, that the decree of the said circuit court, so far as it grants the particular relief as to the deficiency in this cause, be, and the same is hereby reversed and annulled; and that the residue of said decree in all things else be, and the same is hereby affirmed, omitting the name of Mrs Foxall in the investment directed to be made; and that the cause be, and the same is hereby remanded to the said circuit court for further proceedings to be had therein, according to law and justice.
