At December Term, 1851, the following ©pinion was delivered by
In 1826, John Riddick died intestate, seized of lands in Gates county, and leaving three daughters, Emily, Sarah and Mary, who were his heirs at law» Emily married Thomas B. Huntei', and Sarah married William Ely; and they and the said Mary, then an infant, united in a petition in the Court of Equity, few partition of the land by having it sold; which was accordingly decreed, and the sum of #2400 received therefor. Before the money was paid, Mrs. Hunter died, leaving her husband surviving, and also their two infant children, Thomas and Sa rah Ann, and their father, Thomas B. Hunter, was appoint*266ed their guardian, and then received one-third part of said sum. Afterwards, Mrs. Ely died intestate, and without issue, and Mr. Hunter received one-half of her share of the money for the share thereof of his children, representing their mother as one of Mrs. Ely’s heirs. Subsequently, Thomas Hunter died intestate and an infant, leaving his sister, Sarah Ann, his sole heir; and then, in 1835, Thomas B. Hunter, the father, died also, leaving a considerable personal estate to his daughter, Sarah Ann. Thomas Twine was afterwards appointed the guardian of Sarah Ann, and received from the administrator of her father all the sums he had held as part of the proceeds of the land, and also the personalty to which she succeeded as the next of kin to her father.
Thomas B. Costen, a brother ot the wife of the before-named John Riddick, died intestate, and without issue, and seized of lands in fee, and leaving as his heirs two brothers, James and George, and Mary Riddick aforesaid, and Sarah Ann Hunter — the two last representing Mrs. Riddick, the deceased sister of the intestate, Thomas R. Mary intermarried with George W. B. Satterfield, the plaintiff and Twine having removed from the State, the plaintiff was appointed the guardian of Sarah Ann. Upon the petition of James Costen, George Costen, Satterfield and wife, and Sarah Ann, those lands were also sold by decree of the Court of Equity, and the share of the proceeds belonging to Sarah Ann was $975 16, after deducting the expenses ; and the plaintiff, as her guardian, received the same. Before any settlement was made by the plaintiff with Twine, the former guardian, Sarah Ann and Willis F. Riddick, contemplating an intermarriage, entered into articles on the 9th of September, 1847, in which it was recited, that she was in possession of, and entitled to, a considerable personal estate, consisting principally of money in the hands of her two guardians, Thomas Twine and George W. B-*267Satterfield; and also that she was entitled to a portion of the estates of Mary Goodman, deceased, as an heir, devisee, legatee, or next of Idn of said Mary ; and, further, that it had been agreed between them, that he, Willis F. Riddick, should not receive or enjoy any portion oí the property then in'the hands of either of the said guardians, or in the possession of the said Sarah Ann, or any poi’tion of the estate of Mary Goodman, deceased, to which she might be entitled, but that the same should be settled as therein provided: and then the articles contain an assignment and conveyance from Sarah Ann to Isaac R. Hunter, of all the said money and personal property in the hands or possession of Twine and Satterfield, and each of them, and of the share of Goodman’s estate to which she might be entitled as aforesaid, upon trust for Sarah Ann until the marriage, and then for her sole and separate use during the coverture, with power to invest and pay the profits to her alone; and upon the further trusts, if she should survive her intended husband, to convey and transfer the whole to her immediately ; but, in case he should survive her, then in trust for the husband and such child or children as she might leave, equally to be divided between them; and, if she'should leave no child, then for such person or persons as she might, by any writing in the nature of a will, appoint; and for want of such appointment, to the husband absolutely.
The marriage took effect, and, in about a year, the parties had issue a son, who lived only a few days, and then Sarah Ann died in infancy, and without any other issue, and without making any appointment of the property. Soon after the marriage, Isaac R. Hunter, the trustee, instituted a suit, in the Court of Chancery of Virginia, against Twine, the first guardian, and got a decree for the whole fund in his hands, consisting as well of the principal money arising from the sale of the land descended from John Riddick, as the profits thereof, and the money and other personal es» *268tate to which Sarah Ann was entitled from her father: and, after the death of Sarah Ann, the whole was received and paid over to the husband, Willis F. Riddick, as his own.
Lassiter Riddick then took administration of the estate of Sarah Ann, and instituted an action at law against Satter-field and his surety on the bond given by him as her guardian, and recovered therein $1676 23 ; whereof $975 16 was the principal money received for the Costen land, and the residue for the interest accrued thereon in his hands.
The bill is filed by George W. B. Satterfield and George Costen, who is the surety in Satterfield's guardian bond^ against Willis F. Riddick, the husband, and against the trustee in the marriage articles, and the administrator of Mrs. Riddick. It states further, that the plaintiff, Satter-field, and his wife Mary, after she came of full age, duly assigned and conveyed to one Hoskins, all that portion of the money arising from the sale of the lands to which the said Mary was entitled, as one of the heirs of her father, John Riddick, deceased — she having been privily examined thereto ; and that Hoskins afterwards assigned the same to the plaintiff Sattei field. It states further, that, after the sales of all the lands, and the death of Sarah Ann Riddick the plaintiff, Satterfield, and his wife, duly assigned and conveyed to one Hudgins, all that portion of the fund arising from the sales of the Costen land, to which she was entitled as one of the heirs of Thomas R. Costen, deceased, and also any and every other interest which she, the said Mary, had in any other funds or estates whatever — she having been also privily examined thereto; and that Hudgins after-wards assigned the same to the plaintiff Satterfield.
The prayer is, that the principal money, arising front the sales of the land of John Riddick, deceased, belonging to Sarah Ann, and received from Twine, may be decreed to the plaintiff Satterfield, as belonging to him; and also, that he may be declared to be entitled to the principal money *269namely, the sum of $975 16, now in his hands, arising from the sales oí the Costen lands, and once belonging to the said Sarah Ann, and that the defendant be restrained from raising the same upon the judgment at law, obtained on the guardian bond by Lassiter Riddick, administrator, as relator: and for general relief.
The answers are silent as to the assignment and conveyance from Satterfield and wife, to Hoskins and Hud-gins, and from them to Satterfield. They insist on the marriage articles as an effectual disposition of the interests and funds in controversy, and that they are thereby vested in the surviving husband.
The injunction was granted, as prayed for : and on the coming in of the answers, there was no motion to dissolve it, but the cause was set down, and transferred to this Court for hearing.
It was not disputed at the bar, that these funds, being the produce of land sold for partition, though they were in the hands of the infant’s guardians in the form of money, were yet to be regarded in the Court of Equity as land, in respect to alienation, devise or descent. As the owner died in infancy, she could make no election to take the funds as money: and, therefore, the question is, whether she made a valid disposition of them, as land. That was the point principally debated by the counsel: though it was further insisted for the defendant, that Mrs. Satterfield was a necessary party.
Upon the question, whether an infant female may settle her real estate on marriage, opinions seem to have much fluctuated in England. The prevailing ground for upholding such dispositions is the reasonableness of providing for the issue against the imprudence or misfortunes of the parents, and protecting the feme in the beginning, against the solicitations of the husband to join him in alienations. On the other hand, the common law denies the capacity to *270an infant to execute a conveyance of land, which cannot be avoided: and the doctrine, that such a conveyance is valid, is exclusively that of equity. The difficulty is, how the infant acquires an equitable capacity, when she is under a legal incapacity. At the present day, it seems to be altogether uncertain what the rule in equity is on this point. The text writers take, opposite sides, and great chancellors have differed: though, in more modern times, equity seems to be leaning to the law. Milner v. Harewood, 18 Ves. 275, Shaw v. Boyd, 5 Sarg. and Rawl, and 2 Kent’s Com. 243. Indeed, the reasons, for upholding such settlements, do not seem to be as strong in this country as in England. Marriage settlements are more rare in this country, and there seems to be a prevalent sentiment, that, on the whole, they do not promote domestic harmony, and that the children are sufficiently, and, perhaps, better protected by the law regulating the rights of husband and wife, in their own and each other’s property, and the equal succession of all the children to the estates,' both real and personal, of the parents. The Court may well pause, therefore, before laying down a definitive rule, on a point on which so much doubt seems to be entertained by others, until it shall come directly and unavoidably into judgment. It does not at present, because the cause is not ripe for a decision : and because, if it were, it might be decided on another point, not involving the general question, and supposing an infant female capable of settling her land, or binding it by marriage articles.
The point alluded to, arises upon the particular terms of the articles entered into by these persons. The instrument states, that the feme was or might be entitled to some estate, as an heir of Mrs Goodman, which must have been real estate: and that interest is undoubtedly the subject of the articles. But her other interests are described as personal estate, consisting principally of money, in the *271bands of her guardians : and then, in order to carry out an agreement, that the intended husband should be excluded from the receipt and enjoyment of the money, the articles assign those funds as “ money and personal property;’4 upon certain trusts agreed on. There is no doubt, therefore, that fhe parties thought this money to be personalty to all intents and purposes, and the articles plainly disposed of it as personalty. In that there was a total mis" take. The enquiry then presents itself — admitting, even, that her disposition by the articles of the land, as such, would have been binding — whether the Court can regard this as an effectual, equitable disposition of this fund, being land, when the parties thought they were dealing tor a purely personal interest, as they declare in the instrument, and as they most certainly did think.
It is not seen at present how the affirmative can be main, tained. The difference consists in this. An infant female may unquestionably settle her personalty at marriage: that has been long settled in England, on the ground that it cannot be to her prejudice, but must be to her advantage, if it secure to her or her issue anything ; since, without the settlement, the whole would go to her husband, absolutely, on her marriage It may, indeed, be regarded as a settle, ment by the husband, operating by way of estoppel. For these reasons the Court held, in Freeman vs. Cooke, 6 Ired. Eq. 373, that a marriage settlement of slaves-, by an infant female, was binding on all the par-ties, and on the husband’s creditors. Hence, the reasons of this lady for including this interest in the articles, may have been, and, looking at it as money, her reasons must have been, that, but for a marriage contract, the husband would sweep all, and nothing would be left for her or her issue. But non constat had she known the source from which the money was derived, and the real character impressed on it that she would have included it 'in this arrangement, and would not have *272preferred the interest secured by law to herself, her issue, and her other heirs, leaving in the husband, at most, in case he should survive her, the profits for life — being far less ¡than he got under the agreement. There seems, therefore, to be a strong reason why a Court of Equity cannot hold this lady’s heirs to the specific performance of a contract so unequal, and entered into under a clear mistake as to the nature of this property, and the operation of the mar* riage on the rights to it. But this point was not spoken to in the argument, and the Court is quite willing it should be, as well as the other question, if either party so desire, be* fore coming to a decision of the cause; especially as it is not now in a condition for a decree on the merits, in favor of either party. The plaintiff has not shown himself entitled to the rights of the heir of Sarah Ann Riddick, if the heir have any rights; The bill states that, by certain assignments — she being the heir — the rights of Mrs. Satter-field became vested in the plaintiff, Satterfield, exclusively; and the terms of one of the assignments, as stated, are perhaps, broad enough to cover those rights. But those assignments are not admitted in the answers, nor otherwise established: and, in that state of the case) Mrs. Satterfield ought to be before the Court. The equity of the husband and wife together is, only, that the rights of the parties should be declared, and that the capital sums produced by the land, whether in the lands oí one of the parties or the other, should be brought in and invested under the direction of the Court for the benefit of all concerned — giving the interest, during his life, to the surviving husband, as tenant by the curtesy, and securing the capital for the reversioner, Mrs. Satterfield, or her assignee in law or in deed. As husband, merely, or as the defendant in the judgment at law, the plaintiff cannot maintain the bill. But, as it may have been an oversight merely, not to exhibit his- deeds, or, if there be none, not to have made his wife a party, and as it *273is better for all parties to have an early determination on the merits, it seems best that the cause should stand over that the plaintiff may bring in his assignments, or make his wife a party, as he may be advised. When the cause shall be brought on again, each party will be at liberty to insist on any equity to which he may suppose himself entitled.
And at June Term, 1852, the following additional opinion was delivered by
Ruffin, C. J. The plaintiff) at this term, produced the deeds stated in the bill, under which he claims his wife’s interest in the fund in controversy, and it was admitted at the bar, that they are sufficient to vest the right in the plaintiff, if the wife had any. Therefore, the question is as to obligation of the marriage agreement on Mrs. Riddick. On that question, there has been no argument at the present term. But longer consideration confirms the previous impression of the Court, that, laying out of view the point, whether an infant can or cannot bind her real estate by marriage articles, yet, this agreement cannot be sustained and enforced in this Court, in respect to this fund, as realty. The parties believed it to be personalty, and so called it: and they dealt with it as such: and it must be understood that the intention was to settle the feme’s personalty only,, with the exception of the real estate derived from Mrs. Goodman. That is not now in contest: and there was no intention to settle any other realty. That being so, and the difference being so great between the rights of the husband and wife, in the real estate of the wife, derived under the law, and derived under the articles, if effectual, the Court is obliged to say, that the wife ought not to have been compelled to execute the agreement, specifically conveying on the trusts of the articles, this fund, which is the produce of the sale of her land, and, under the statute, is *274regarded in equity as land. Her heir stands, of course, on the same equity: and is entitled to the fund in reversion, after the husband’s estate, by the curtesy. The interest hitherto accrued, belongs, therefore, to the surviving husband: and the capital ought to be brought in and invested for the benefit of Riddick for life, and after-wards for that of the plaintiff Satterfield, his executors and administrators.
The defendant, Riddick, must pay the costs up to this time.
The following decree was directed to be entered, and was entered accordingly :
This cause coming on to be heard upon the bill, answers, former orders, exhibits, and other evidence in the cause, and being debated by counsel, the Court doth declare, that John Riddick died intestate, seized of certain lands in the county of Gates, which descended to his three daughters, Emily, Sarah and Mary, his heirs at law: That the said Emily, who had intermarried with Thomas B. Hunter, Sarah, who had intermarried with William Ely, their said husbands, and Mary, by proper proceedings in the Court of Equity, for partition, caused said lands to be sold for twenty-four hundred dollars: That Emily afterwards died, leaving her husband and two children, Thomas and Sarah Ann, surviving, and her share in said fund, to wit, $800, thereby descended to said Thomas and Sarah Ann, her heirs at law, subject to the life estate of their father, the said Thomas B. Hunter: That, afterwards, the said Sarah Ely died without issue, leaving, as her heirs at law, her sister, said Mary, and said Thomas and Sarah Ann, children of her deceased sister Emily, to w'hom the share of the intestate, Sarah Ely, in the said fund descended: That the said Thomas having also died an infant intestate, his share in said fund descended to his sister, the said Sarah *275Ann: And that, 'by means of these deaths and descents, the one-third part of said fund, belonging to said Emily, and one-balf of the other third, belonging to said Sarah Ely, being one moiety of the whole fund, became vested in the said Sarah Ann.
And the Court doth further declare, that Thomas R. Cos-ten, a brother of the wife of the said John Riddick, died intestate, without issue, seized of land in fee, and leaving as his heirs at law two brothers, James and George, and Mary Riddick aforesaid and Sarah Ann Hunter, the said Mary and Sarah representing Mrs. Riddick, the deceased sister oi the intestate, Thomas R. Costen; and that the said lands, descended to them : That the said Mary, having intermarried with the plaintiff, George W. B. Satterfield, they and the said Sarah Ann, Jamas and George Costen, caused the said lands to behold for partition, by proper proceedings in the Court of Equity of Gates county, for a sum, the share of which, belonging to the said Sarah Ann, was $975 16.
And the'Court doth further declare, that the said Thomas B. Hunter was duly appointed guardian to said Sarah, his daughter, and, as such, received from 'the fund arising from the sale of the lands descended from the intestate, John Rid-dick, her moiety thereof, to wit, the sum of $1200, to be held as real estate: That said Thomas afterwards died, and one Thomas Twine was duly appointed guardian to said Sarah Ann, and, as such, cdllected from the administrator of said Thomas R., the said fund of $1200, belonging to said ward, and which was 'held by 'him as real estate.
And the Court doth further declare, that the said Thomas Twine afterwards removed to Virginia, and the plaintiff George W. B. Satterfield, was duly appointed her guardian, who received into his hands the said sum of $975 16, his ward’s share in the lands descended from said Thomas R. Costen, to be held as real estate: and that the principal mousey of said fund is still -in his hands, as well as such inter*276est thereon as may have accrued and not been paid over to the defendant, Lassiter Riddick, administrator.
And the Court doth further declare, that the said Sarah Ann, in contemplation of marriage with the defendant, Willis F. Riddick, and while still an infant, entered into a marriage settlement, whereby she attempted to convey, as personal estate, the aforesaid funds to the defendant, Isaac R. Hunter, upon the trusts therein set forth: but the said settlement was made, by the said Sarah Ann, under the erroneous belief that she held the said funds as personal and not real estate, and under a mistake as to her rights therein: and that the said deed of settlement was therefore ineffee-ual to transfer or assign the said funds, or any part thereof.
And the Court doth further declare, that the sard Sarah Ann, after her intermarriage with said Willis F. Riddick; had issue, a son of the marriage, who lived a few days only, and, after his death, the said Sarah Ann died, still an infant, and without other issue: and that, by means thereof, the said Willis F. became entitled, as tenant by the curtesy, to an estate for his life in the two funds aforesaid; and the said Mary Satterfield, as heir at law of said Sarah Ann, to whom the same had descended, became entitled to the remainder, after the death of said Willis F., in the said funds.
And the Court doth further declare, that, by sundry deeds of bargain and sale, properly executed, the estate in remainder in said funds vesting in said Mary Satterfield, has been assigned and conveyed to the plaintiff, George W. B. Satter-field, in his own right, and in fee.
And the Court doth further declare, that the said fund of $1200, was collected by'the defendant, Isaac R. Hunter, as trustee, soon after the marriage of said Sarah Ann, from the said Thomas Twine, by proceedings in the Courts of Virginia, and paid over to said Willis F. Riddick.
And the Court doth declare, that the said George W. B. Satterfield is entitled to the principal money of said funds, *277to wit, the sum of $ 1200, and the sum of $975 16, upon the death of said Willis F.; and that the said Willis F. is entitled to the interest thereof during his life time, and the plaintiif, said George W. B. Satterfield, is entitled to have said funds secured, to be forthcoming at the death of said Willis F.
And it is thereupon ordered, adjudged, and decreed, that the said Willis F. Riddick, who is primarily liable, and the the said Isaac R. Hunter, who is also liable, pay into this Court the sum of 11200, principal money received by him, as herein declared; and that the.said George W. B. likewise pay into Court the sum of $975 16, principal money in his hands, as aforesaid, to be invested, under the order of this Court, so as to secure the interest thereon to said Willis F. during his life, and the principal, at his death, to the said George W. B.
And it is further ordered, adjudged, and decreed, that the injunction heretofore awarded against the defendant,- Lassi-ter Riddick, as administrator of said Sarah Ann, be made perpetual.
And it is referred to the Master of this Court to inquire and report what interest has accrued, or ought to have accrued, on the said funds, when the same are paid into his office, as directed by this decree.