English, Smith, Mackall & Hoffman v. Foxall
27 U.S. 595

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U.S. Supreme Court

English, Smith, Mackall & Hoffman v. Foxall, 27 U.S. 2 Pet. 595 595 (1829)

English, Smith, Mackall & Hoffman v. Foxall

27 U.S. (2 Pet.) 595


A marriage settlement provided that the trustees, after the death of the husband, should stand possessed of a bond executed to them by the husband and of the sum of $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 the wife, and to call in and replace the same and reinvest the same and the produce thereof from time to time upon or in such securities or stock, with the approbation of the wife.

It is not an unreasonable interpretation to say that the wife, who survived the husband, 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 authorized to make any other investment. The trustees are bound "to make the investment in any one of the funds mentioned which the wife might request or direct."

The husband by his will confirmed the marriage settlement, and he further declared

"That if the sum of $37,038 secured to be paid to the trustees should at any time be found insufficient to raise and bring into the hands of the trustees the clear annual sum of $2,222.22, the annuity secured to be paid to his wife by the settlement, then the trustees of his will shall from time to time transfer to themselves, as trustees of the settlement, out of the residuum of his 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 the principal sum and the amount of the annuity, so that in no event less than $2,222.22 shall be raised annually for his wife or for her benefit in the United States."

The personal estate of the husband, exclusive of the sum placed in the hands of the trustees of the annuity, was so invested as to produce six percentum per annum, and the direction of the wife to keep invested in six, percent stock of the United States the $37,038 produced a deficiency in the annuity which she claimed to have made up from the residuary estate. The wife has a right to claim this deficiency to be so made up.

There is no doubt but that under the general prayer in a bill in chancery for general relief, 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.

Page 27 U. S. 596

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

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