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January 1, 1850


THIS was an appeal from the Circuit Court of the United States for the District of Georgia. It was the case of a bill filed upon the equity side of that court by William Neves, a citizen of Alabama, and James C. Neves, a citizen of Mississippi, against Scott and Rowell, citizens of Georgia.

The facts were these.

In the year 1810, John Neves and Catharine Jewell, widow of Thomas Jewell, deceased; in contemplation of a marriage shortly to take place between them, executed the following articles of agreement.

'Georgia, Baldwin County.

'Articles of agreement made and entered into this 17th day of February, in the year 1810, between John Neves and Catharine Jewell, widow and relict of the late Thomas Jewell, (deceased,) all of the State and county aforesaid, are as follows, viz.:––

'Whereas a marriage is shortly to be had and solemnized between the said John Neves and the said Catharine Jewell, widow, as aforesaid, are as follows, to wit:–that all the property, both real and personal, which is now or may hereafter become the right of the said John and Catharine, shall remain in common between them, the said husband and wife, during their natural lives, and should the said Catharine become the longest liver, the property to continue hers so long as she shall live, and at her death the estate to be divided between the heirs of the said Catharine and the heirs of the said John, share and share alike, agreeable to the distribution laws of this State made and provided. And, on the other hand, should the said John become the longest liver, the property to remain in the manner and form as above.

'In witness whereof, the said John and Catharine hath hereunto set their hands and affixed their seals the day and year above written.


CATHARINE her X mark. JEWELL, [L. S.]



The marriage took place soon afterwards.

In October, 1828, John Neves made a will, and shortly thereafter died. By this will he directed commissioners to be appointed who should divide his whole estate, both real and personal, equally between his wife, Catharine Neves, and George W. Rowell, to whom he devised his half; and appointed Captain Richard Rowell and Myles Greene his executors.

In a codicil, the testator directed that certain real and personal property should be sold for the payment of his debts.

Greene declined to act as executor, but Richard Rowell took out letters testamentary, and was proceeding to sell the property named in the will, when Catharine filed a bill against him in the Superior Court of Baldwin County, and obtained an injunction upon him to stay further proceedings. She produced the agreement above mentioned, alleged that, under it, she was entitled to the whole of the real and personal estate during her natural life, and offered to give security for the payment of all his debts. The result of this suit was, that Rowell was allowed the expenses which he had incurred whilst acting as executor, and Catharine gave bond, with security, for the payment of the debts of the estate.

In 1835, Catharine intermarried with William F. Scott, and died in September, 1844.

In February, 1845, William Neves, and James C. Neves, the brother and nephew of John Neves, filed their bill in the Circuit Court. The bill stated the above facts; alleged that, after the marriage between Catharine and Scott, all the property remained in their joint possession until her death; that Scott was insolvent, and had used a large amount of the money and proceeds of the estate in payment of his debts; stated, as an estoppel, the former judgment of a court in Georgia sustaining Catharine's right upon the ground of the validity of the marriage settlement; charged waste, and prayed for a discovery, and decree that they, the complainants, might be put into possession of one half of all the property which was owned by John Neves and Catharine Neves. They also made Richard Rowell a defendant.

In April, 1845, the defendants both demurred to the bill.

In April, 1846, the Circuit Court, then holden by John C. Nicoll, the District Judge, sustained the demurrer, from which decree the complainants appealed to this court.

It was argued by Mr. Walker and Mr. Johnson (Attorney-General), for the appellants, and a printed argument was filed by Mr. Stephens, for the appellees.

The counsel for the appellants divided the argument into two branches.

I. That the articles amounted to a marriage settlement; that they went into effect as such; and no further act or conveyance was stipulated, or intended to be executed by the parties. In support of this construction the authorities relied on were Atherly, 121-123, 151; 2 Vernon, 702-705; 3 Ves. jr. 387, 397; 12 Ves. 218; 9 Simons, 195; 3 Mylne & Keen, 197; 7 Pet. 393.

This is a complete settlement.

1st. Because (if the reasoning of our opponents be adopted) it will frustrate a specific provision of the instrument in favor of the complainants, and thus defeat the intention of the parties.

2d. It is under seal, which is usual in deeds, but not in mere articles.

3d. It is attested by several witnesses.

4th. It is not mere minutes, or heads agreed upon by the parties for a future settlement, but a complete settlement of itself.

5th. It neither directs nor contemplates any future act or further instrument to complete the settlement, but purports to be itself a final settlement.

6th. The words used are such as operate of themselves to transfer the property. It is not what the settlements shall be, but what by the instrument they are. From and after the marriage, the property, by virtue of the instrument itself, is to 'remain in common between them, the said husband and wife,' during their natural lives. This went into effect at once, as a legal estate upon the marriage; so, also, on the death of the husband before the wife. 'The property to continue hers so long as she shall live.' This was a life estate, vesting in her by law on the death of the husband; so, also, the subsequent grant to the heirs. They are all estates vested in law by the instrument itself, and no future act or conveyance was ever made or contemplated.

If the case were doubtful, it may be interpreted by the acts and declarations of the parties. These acts and declarations show that the instrument was understood by all parties to be a complete settlement. Barstow v. Kilvington, 5 Ves. 592 and note to ed. of 1844, p. 602; Pulteney v. Darlington, 1 Bro. Ch. 223, 236, 239; Randal v. Randal, 2 P. Wms. 464, 467; 2 Sugden on Vendors, (9th ed.) 170.

(It was then argued that the acts of the parties in the prior suit, mentioned in the statement of this case, confirmed the validity of the instrument as a marriage settlement.)

II. But admitting, for the sake of argument, that the instrument must be regarded as mere articles, they are valid, and operate in favor of the complainants in this case, for the following reasons:––

1st. Because, even if voluntary and executory, they are under seal, and not a nudum pactum; they would operate as a bond, or covenant, on which damages could be recovered at law; and therefore are founded on a ...

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