English, Smith Mackall and Hoffman, Appellants v. Catharine Foxall, Appellee English, Smith Mackall, Hoffman Kenney and Others, Appellants v. Catharine Foxall, Appellee
| Decision Date | 01 January 1829 |
| Parties | ENGLISH, SMITH, MACKALL AND HOFFMAN, APPELLANTS v. CATHARINE FOXALL, APPELLEE. ENGLISH, SMITH, MACKALL, HOFFMAN, M'KENNEY AND OTHERS, APPELLANTS v. CATHARINE FOXALL, APPELLEE |
| Court | U.S. Supreme Court |
APPEAL from the circuit court of the county of Washington.
The appellee in these cases, is the widow of Henry Foxall: and the appellants in the first case, are the trustees named in a marriage settlement, executed by Henry Foxall at the time of his marriage with the appellee; and in the second, they are the trustees, executors and legatees named in the will.
On the marriage of Henry Foxall with the appellee, in England in 1816, a contract was entered into for an annual income of 500 sterling, or $2,222.22, for the life of Mrs Foxall; to commence at his death; for her jointure, and in lieu of her dower; and, on the decease of Mr Foxall, the sum of $37,038, was then to be raised and paid to the trustees, for the purpose of securing the same.
In the settlement it is declared, that upon the treaty for the marriage, it was agreed between the parties thereto, Henry Foxall and Catharine Holland, that should she survive him, he would provide and settle on her an annual income of 500 sterling, equal to $2,222 22 cents, in the nature of a jointure for life, and in bar of dower; that he should devise to her his messuage in Georgetown, and assign her his furniture and carriage for life, in increase of her jointure; that her property, which was wholly personal, should vest in her, but that all future property should be at her disposal, as if she were a femme sole; and that the children of the marriage as well as a present daughter of Henry Foxall, should be dependent on him for support. The marriage settlement also recites, that in part performance of the same, Henry Foxall had made his bond in the penalty of $74,116, to the trustees, to be void on payment by his executors, within six months from his death, of $37,038, with interest at six per cent.
It is then declared by the deed, that in case the appellee should survive said Henry Foxall, the said trustees should stand possessed of said bond, and said $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 of the United States of North America, or bank stock there, with the approbation of said Catharine Holland, and to call in and replace and reinvest the same, and the produce thereof, from time to time, upon or in such securities or stock, with the approbation of said Catharine Holland; and to pay the interest and dividends of the said sum, securities or stocks from time to time as the same should be received, to her the said Catharine Holland or her assigns, or permit her or them to receive such interest or dividends for her life, for her separate use,' &c. And after her death upon trust to pay, transfer, and assign said $37,038, and the securities or stocks in or upon which it should be placed out or invested, and the dividends, &c. unto the executors or assigns of the said Henry Foxall.
Mr Foxall died in England in 1823, having left a will dated the 12th of April 1823. The first clause in the will is in these words: 'First, 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 condition of the bond entered into by me upon my said marriage, to be faithfully performed and observed:' and afterwards, '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 of $2,222 22 cents, 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, 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 cents shall be annually raised for my said wife, or for her benefit within the United States.'
He also gives her, over and above the provisions made for her benefit by said settlement, a legacy of $500; the plate, &c. purchased since the marriage, and all his servants.
He then gives the $37,038, 'stipulated to be raised and paid to the trustees of his marriage settlement,' after the death of his said wife, 'to the children of the marriage absolutely;' and if none, directs it after the death of his wife to sink into the residuum of his estate.
The will contained a proviso, that any depreciation in the value of his property, should be borne equally by all his legatees, 'his wife, and any child or children he might have by her, excepted.'
Hoffman, Smith, M'Call and M'Kenney were appointed executors of the will. There were no children of the marriage, and but one daughter, Mrs M'Kenney, by a former wife. The estimate placed by Mr Foxall upon his property, at the time of his decease was $270,000. In December 1827, the trustees valued the real estate at $70,000, and the personalty at $88,000.
At the decease of Mr Foxall in 1823, $32,645, of six per cent stock of the United States, stood in his name; and at that time the government stocks were as much above par, as they were when this bill was filed. Mr Foxall was, at that time, well acquainted with the price of government stocks, and of the stocks of the local banks, the latter of which it was in evidence, could have been purchased at that time at ninety-six per cent.
On the 17th of July 1824, Mrs Foxall being then in England, the executors addressed the following letter to her:
And on the same day, the trustees addressed the following:
'The executors of your late husband, 'the Rev. Henry Foxall,' are ready to pay over to us, the trustees named in the marriage settlement, the sum of $37,038, for the purpose of providing the annuity secured to you in said settlement. In said settlement it is stipulated, that we are to place it out 'at interest on freehold security, or invest it, or any part of 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. The will, you will doubtless have perceived, has made provision, that in case the said fund of $37,038 should not produce in interest, the annual payment to be made to you of $2,222 22 cents, there shall be provided from his estates whatever may be deficient, so that in no case shall you receive a less amount.
To these letters the following answer was written by Mrs Foxall, and received by the executors and trustees:
Gentlemen;—In reply to your letter of the 17th of July last, in which you request my approbation relative to the investment of the $37,038, to provide my annuity according to my marriage settlement, I acquaint you, that, in the judgment of my late husband, and according to 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 or bank stock, and beg it may be so invested.'
Mrs Foxall returned to the United States in December 1824, and a similar application was made to her by the trustees, with the same effect; and she remained in the belief that the investment was made according to her wishes, in stocks of the United States. Ten thousand six hundred and forty-five dollars, six per cent. stock, were afterwards paid off by the government, without the knowledge of Mrs Foxall; and of this sum $10,000 were also, without her knowledge, loaned to one of the trustees and to another person, on their promissory note, secured by a pledge of $12,000, stock of the Farmers' and Mechanics' Bank, of Georgetown.
In 1826, Mrs Foxall came to know that no separate investment had been made for her annuity; and she then, in writing, requested that the sum of $3,7038 should be invested in stock of the United States for that purpose. This was refused by the executors and trustees; they contending...
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