Union Sugar Refinery v. Mathiesson.

recommitted the cause to the master, and the whole subject was revised and a report brought in greatly more satisfactory to the court. The first correction of the kind in this district now resting in my memory was in the case of Howe v. Williams, where, through inadvertence in consequence of the first draft having been lost by the counsel, after it had been fully examined and settled by the court, a new draft was prepared, varying its phraseology; and when that case came back from the master, the court, for the first time in this district, corrected, took out the ambiguity from the decretal order, and sent it back to the master. No doubt is entertained of the power of the court in that behalf.

We are not now deciding that the court might not have the power to revise each act of the master as it progressed, provided it was referred back in a formal report by the master. But we do decide that such a practice would be productive of great delays, and will not receive any countenance from the court. My opinion is that the general practice which has been pursued in this circuit is for the interest of all concerned, and until it can be clearly seen that it can be amended to the advantage of the parties litigant, and in a manner to promote the convenience of the court, we must adhere to that practice.

Sudden changes in practice, especially in equity suits, are not advisable. Great care is necessary in equity suits in following closely the rules of the court and the settled course of practice. Otherwise the bar would become confused and the court find itself involved in difficulties far greater than need be, if the regular course of practice is pursued. Some experience at the bar, and more in the courts, in this court and in the Supreme Court, has convinced the presiding justice of the great benefit of a careful adherence to the usual practice in equity suits. They sometimes continue for a considerable length of time; parties decease, supplemental bills, amendments to bills, and answers, and new proofs, are introduced; and in these different stages, unless there is a pretty close adherence to the known rules of practice, confusion is apt to ensue; and it is hardly necessary to remark that, whenever a case is involved in

Union Sugar Refinery v. Mathiesson.

confusion, it is embarrassing to the bar, and still more embarrassing to the court.

We feel more satisfaction in announcing this conclusion in this important case, because we are utterly unable to see how the respondent who brings the case here for the consideration of the court, on this occasion, can possibly suffer any ultimate detriment. The power of the court to revise any and every irregularity before the master is full and ample, and can in our view of the matter be best exercised when we have them before us with the whole case. Take any litigation of this volume in evidence and pleadings and it would be quite difficult for the judges to decide an isolated point to their own satisfaction, without looking at the whole or nearly the whole record; as the consideration of one point necessarily must have a bearing greater or less upon other parts of the same record.

We should be exceedingly reluctant to lay down any rule in equity which could embarrass the parties or the bar; but, on the contrary, we do not hesitate to say, if we could see by any new rule we could adopt that there would be less embarrassment to the bar, the parties, and the court, we should adopt such new rule, but our impressions are that innovations ought to be very carefully considered. Even the Supreme Court, in one or two instances, have adopted a rule which they thought to be an improvement, and the probabilities are very strong that they will find it necessary to revise the practice and return to the rules which existed before.

In view of the circumstances our conclusion is, that the filings entered by the clerk be stricken out, and that the several papers filed be returned by the clerk to the master.

Walker v. Beal et als.

OCTOBER TERM, 1868.

ELIZA WALKER, IN EQUITY, v. JOSEPH S. BEAL et als.

The Circuit Court in this district has jurisdiction to grant relief under a bill praying for an account of certaia funds received by a testator from the complainant, under a promise to invest the same for the complainant, where the testator died in Rhode Island, and his last will and testament was proved there, but administration was also granted in this State, where the testator left real and personal estate to a large amount. A husband and wife agreed to live separately. Certain property was transferred by the husband to trustees, to pay the income to the wife, upon condition that she should relinquish her claims of dower to purchasers of such portions of his other real estate as he should sell during coverture; and if she survived him, she should relinquish her right of dower in all the remainder of his real estate. Held, such a trust may be upheld in a court of equity.

The agreement of separation in this case was not rendered invalid by the provision for its continuance, should the parties after the making of it elect to cohabit. Neither was it suspended while they lived together. It was evident from the conduct of the parties that they regarded the indenture as operative during their cohabitation.

The indenture in this case was not solely based on separation. Temporary reconciliation and cohabitation did not suspend its operation, because the parties had expressly covenanted that it should not.

Unless it be assumed that the husband cannot be the trustee of his wife, in any case, it cannot be maintained under the indenture in this case that the trust property was wholly discharged of the trust, by the payment of the rents, income, etc. to the complainant, or that these, when paid by her to her husband, became his property. The husband in this case received from her the rents, income, etc. of the trust property, under an agreement to invest it for her and her children. Such an arrangement made the husband the trustee of the wife.

The complainant was not precluded from setting up her claim by the indenture of compromise, she being a mere formal party to the adjustment, and the purpose of the instrument being to effect an adjustment between the heirs-at-law and the residuary legatees, and there having been no concealment of this claim on the part of the complainant.

Acceptance by the complainant of the provision made for her in her husband's will is not inconsistent with her claim under the agreement of separation, because the declared intention of the testator was, that the amount secured to the complainant in the agreement of separation, coupled with the provision made for her in his will, should be in full for her separate maintenance, and in lieu of dower.

THE complainant was the widow of William J. Walker, of Newport, in the State of Rhode Island, and the respondents were the executors of the last will and testament of the de

Walker v. Beal et als.

ceased, as duly constituted under the laws of this Commonwealth.

The introductory allegations of the bill of complaint were, that the complainant, in the month of September, 1845, was the lawful wife of the deceased, and that they both then were, and for many years previously had been, inhabitants of Charlestown, in this State; that at that time and for many months before that time he, the husband, had been guilty of such extreme cruelty towards the complainant, that she ultimately, on or about the 15th of September of that year, was compelled to leave his home, and no longer cohabit with him; that his acts and conduct toward her were such that by the laws of the State she was entitled by reason thereof to prosecute and maintain against him a suit for divorce from bed and board, and to be decreed in such suit a liberal and suitable allowance for alimony; that being about to institute proceedings for such divorce, he, in order to induce her to forbear to carry that intention into effect, and to avoid a decree against him for such alimony, proposed to execute. an agreement with the complainant that they should live separate and apart from each other, and to provide for her support and maintenance by a conveyance of real and personal estate to trustees, with power, and whose duty it should be, to appropriate the income thereof for that purpose.

Based upon those introductory averments, the bill of complaint proceeded to allege that the complainant accepted the proposition of her husband, then in full life, and that the indenture embodying the terms of the same, and which was annexed to the bill of complaint, was on the 24th of February, 1846, duly executed by all the parties, including the trustees; that property, real and personal, to the amount therein agreed, was transferred to the trustees therein named, in trust, that they should pay the income of the same to the complainant during her life, upon the conditions therein provided.

By the terms of the indenture they covenanted to live separate and apart from each other during coverture, unless they should thereafter elect to live together, as the provision assumed they might do; and the complainant also agreed, that if her husband

Walker v. Beal et als.

should sell any portion of his real estate during her lifetime, to relinquish to the purchaser her claim of dower in the same, and after his decease to release her dower or right of dower in all his remaining real estate, when thereto requested by his heirs, 'executors, or administrators.

Subject to these conditions and some others, not material to be mentioned, the complainant accepted the provision, in full satisfaction for her support and maintenance, and of all alimony during coverture, and covenanted and promised that she would at all times thereafter live separate and apart from her husband during coverture, unless they should thereafter mutually agree to live together. But the express provision was, that if they "shall at any time or times hereafter cohabit and live together as heretofore, these presents shall not thereby be rendered invalid." On the contrary, the stipulation was, that the trusts therein contained should in that event be executed in like manner as if they should live separate and apart.

Pursuant to that indenture they separated, and the complainant lived apart from her husband from the date of the instrument until the month of April, 1846, when at his request, as she alleged, she returned to live with him, and continued to live with him until the month of June, 1860, when she was compelled by his cruel and harsh treatment of herself and daughter to cease to live with him, and ever after during his life continued so to live separate and apart.

Due conveyance was made of the described real and personal property to the trustees, and they covenanted in the same instrument that they would collect the rents, interest, and income of the same, and cause to be paid out of the trust property, rents, interest, and income, all debts which the complainant might thereafter contract, and after deducting all necessary and proper charges and expenses, to pay annually or oftener the residue of the rents, interest, and income to the complainant during her natural life, for her sole and separate use and benefit, and upon her own order and receipt in writing.

The execution of the indenture was admitted, and it was not controverted that the persons named as trustees in the instru