The facts in this case are essentially the same with those in the case of Mercier v. Fort Scott & Gulf R. R. Co., decided by this court in January, 1874, (54 Mo. 506.) The questions of law presented by these facts have, however, been argued with great ability, and we are called upon to reconsider our conclusions in that case. The first question presented in 1874, and now, is as to the title of Mrs. Mercier, or her trustee, Gillis, in the land sold, or claimed to be sold to defendant. It is claimed on the side of plaintiffs that this was only a life estate in Mrs. Mercier, with remainder to her children. This claim is based partly on the terms of the decree of 1847, by which Gillis, her trustee, was allowed to convert a part of her money (about $800) into land, for the benefit of herself and family, and principally upon certain rules of equity courts in regard to such decrees. The order of the court which authorized Gillis to invest the money in a home for Mrs. Mercier and family, at the same time required him to hold said land so purchased in trust for the said “Maria Louisa and her heirs,” and ordered the deed to be made to the said Gillis, commissioner for the said Maria Louisa Mercier and her heirs.

*4891. Wife’s Equity, Rule as to Settlement of: effect of settlement upon her and her heirs. *488Foi’"myself I concede, that in England, a settlement of the wife’s property upon her, to the exclusion of the husband, *489always includes the children. It is sufficient,. without any references to numerous cases that have been cited, simply to copy the remarks of Sir Wm. Grant in the case of Murray v. Ld. Ellibank, 13 Ves. Ch. 5, in order to show what has been the uniform practice of the courts of chancery in England r “'With regard to the equitable right which a married woman has in this court to a provision out of her own fortune, before her husband reduces it to possession, it stands upon the peculiar doctrine of this court. It is vain to attempt by general reasoning to ascertain the extent of that doctrine. We must look to the practice of the court itself. It is sufficient to say, the habit of the court has always been, of itself and without any application previously made by the married woman, to direct an inquiry, when money has been carried over to her account, whether any settlement has been made; for the money is carried over subject to that inquiry; and the constant habit has been to direct a settlement, not upon the wife alone, but upon the children also. I am not aware that she has in any case been permitted to say, she claims a settlement for herself but not for her children. She has the option not to have any settlement made; but if a settlement is to be made, it is always directed for the benefit of the wife and the children. When she comes to give up her right to her husband, she is examined whether she wishes any settlement. If she does not, then the money is paid to her husband. If she desires a settlement, the settlement is upon her and her children.” We have not been referred to any case in England conflicting with this statement of Sir Wm. Grant, and I presume none is to be found.

In regard to the authorities in the United States, Judge Story, in speaking of the wife’s equity, says : “ It is called the wife’s equity. But in truth it is never limited to the wife; for in all eases where a settlement is decreed, it is the invariable practice to include a provision for the issue of the marriage, through the instrumentality of the equity *490of the wife. This equity will not only be administered at the instance of the wife and her trustee, but also, where the husband sues in equity for ber property, at the instance of her debtor.” 2 Story, § 1406. In the ease of Helms v. Franciscus, 2 Bland Ch. 544, the reporter in his head notes states, as the substance of the chancellor’s opinion, that in general the court settles only a part of the wife’s fortune upon her, and that in some cases, or with the consent of her husband, the whole may be settled on her; but on examination of the opinion, which reviews the whole subject extensively, it will be found that this was said merely in reference to the conflicting claims of husband and wife, and without any regard to the children.

If then this doctrine, prevalent in England and in the old and thickly populated states of the union, was applicable to the purchase of land with the wife’s money, on the far western border of Missouri, more than thirty years ago, when seventy acres or thereabouts were bought for $250, it is clear that the decree of 1847 was erroneous. But the decree was made by a court of competent jurisdiction, with all the facts before them, and upon proper appearance of Mrs. Mercier and her guardian. It is a mistake to suppose that the children are ever made parties to such proceedings. Tbe court proceeds upon the request of the wife, or her trustee, or without any application, or in some eases at the instance of her debtor. Clancy on Rights of Married Women, hook 5, ch. 2. The title was taken in conformity to this decree, and, as was held by this court in 1874, this conveyed an absolute estate in equity to Mrs. Mercier.

2. Married Woman’s Trust Estate: waiver of irregularity in appearance. But it is urged that the decree of 1858 was void because Mrs. Mercier appeared by attorney. Conceding this, it appears that G-illis, ber trustee, received the purchase money, and in the absence of any evidence that he failed to comply with his trust, the presumption is, that Mrs. Mercier acquiesced In the sale and received the purchase money from the' trustee. Would Mrs. Mercier then, if living, be allowed *491by any court to get a rescission of this conveyance without a return of the purchase money ? Have her heirs, since her death, any better right? We think not, and, therefore, the judgment of the circuit court is affirmed.

Dissenting. — It is conceded by my associates that the proceeding in the circuit court which terminated in the decree of the 24th day of September, 1847, was a proceeding for the settlement of the wife’s equity, and that the court in its decree should have made provision for the children of Mrs. Mercier. The decree which was made, is as follows :

Maria Louisa Mercier, by her 1 On petition to vest trust

next friend, Benoist Troost. j funds in real estate.

Now at this day conies the said petitioner, by her solicitor, and files her petition herein,-praying the court to make an order on William Gillis, trustee of certain funds in bis hands belonging to her, and authorizing and requiring said trustee to vest a certain portion of said funds in land for a home for the said petitioner, Maria Louisa Mercier and her family, which said petition being by the court heard and fully understood, and it being manifest to the court that it would conduce greatly to the comfort and happiness of said petitioner, and her family, to vest a portion of said trust funds in land- for a home for the said petitioner and her family; it is, therefore, ordered, adjudged and decreed, by the court here, that William Gillis, trustee of the funds of the said Maria Louisa be, and he is hereby authorized and required to vest the sum of $800 of the funds in his hands belonging to the said petitioner, in land for a home for the said petitioner and her family, and' the court doth hereby appoint said Gillis commissioner to hold said land in trust for the said Maria Louisa and her heirs, and orders that the deed of conveyance for said land *492so ordered to be purchased as aforesaid, bo made to the said G-illis, commissioner for the said Maria Louisa Mereier arid her heirs;- and it is further ordered that said commissioner report his proceedings in the premises to the next term of this court, and this cause is continued.

It is a well recognized rule of construction, founded in reason, that the language of a decree should be construed with reference to the character of the proceeding and the nature of the relief sought. Graham v. Railroad Co., 3 Wall. 704. There is no difficulty in construing the the word “ family.” Its usual and primary signification is “ children.” Barnes v. Patch, 8 Ves. 607; Woods v. Woods, 1 Myl. & Cr. 409 ; MacLeroth v. Bacon, 5 Ves. 159; White v. White, 30 Vt. 338; Flournoy v. Johnson, 7 B. Mon. 693; Cosby v. Ferguson, 3 J. J. Marsh. 264 ; Hall v. Stephens, 65 Mo. 670; In re Terry’s Will, 19 Beav. 581. Such being the meaning of the word “family,” and the object of the proceeding and the prayer of the petition being as stated in the decree of the court, that an investment should be made in land for a home for Maria Louisa Mereier and her family or children, and it being adjudged and decreed by the court that the ..trustee, William Gillis, should invest the sum named l‘in land for a home for said petitioner and her family,” or children, the conclusion is unavoidable and irresistible, that the word “heirs,” as it subsequently appears in the decree, was used in the sense of “children.” The word heirs may be and frequently is so construed. 2 Washburne Real Prop., (4 Ed.) side p. 274; Williamson v. Williamson, 18 B. Mon. 329; Thurston v. Thurston, 6 R. I. 296.

That the whole purpose of this proceeding by Mrs. Mereier, and the manifest and unqestioned intent of the court should be thwarted and overthrown by a rigid and technical construction of the word “heirs” as ordinarily used in conveyancing is contrary to every rule of interpretation applicable to the case. It'is incomprehensible that the court should have adjudged and decreed that Will*493iam Oillis should invest a certain sum in land for a home for Mrs. Mercier and her family, and should in the very next sentence have purposely directed him to take a conveyance in such a manner as to defeat the object of the investment. The purpose of the court in using the word “ heirs ” could not have been to invest Mrs. Mercier with an equitable right to the fee, as it was wholly unnecessary under the statute to use that word for that purpose. The word was, doubtless, used as meaning the heirs of her body, the children then in esse and which might thereafter be born. That the circuit court used the word “heirs” in the sense of “family ” dr “ children,” is manifest from the language of the conveyance taken in pursuance of the decree, and approved by the court. That conveyance is as follows:

This indenture, made and entered into this 15th day of March, in the }Tear of our Lord one thousand eight hundred and fifty, by and between Benoist Troost, Mary Ann, his wife, of the county of Jackson, and State of Missouri, of the first part, and William Gillis, as trustee for the use and benefit of Maria Louisa Mercier and her family, according to a decree made at the September term, 1847, of the circuit court of the county aforesaid, of the second part, witnesseth : That the said parties of the first, for and in consideration of the sum of $250 to them in hand paidby the said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain, sell and confirm unto the said William Gillis, in trust as aforesaid, according to the decree aforesaid, and to his successors, the following tract or parcel of land situate and being in the county of Jackson, and State of Missouri, together with all and singular the appurtenances thereto belonging, to-wit: The one-half of the northwest fractional quarter of section No. seven (7), in township No. forty-nine (49), in range No. thirty-three (33), excepting about ten acres heretofore conveyed to Silas Armstrong, supposed to contain 140 acres, be the *494same more or less, the one undivided half, which in division shall be so divided that each half shall contain one-half of the bottom and one-half of the hill land in quantity, the said party of the second part, having for his part in trust as aforesaid, the northeast part thereof, situate east of Turkey creek, in the county and State aforesaid. To have and to hold the above granted premises to the said party of the second part in trust as aforesaid, according to the decree as aforesaid, and to his successor and successors forever. And the said parties of the first part for themselves, their heirs, executors, administrators and assigns, do covenant, with the said "party of the second part and his successors in trust as aforesaid, to forever warrant and defend the title to the aforegranted premises against the claim or claims of all persons whomsoever. In testimony whereof, etc.

Benoist Troost. [seal.]

Mary A. Troost. [seal.]

I am of opinion that under the judgment of the court Mrs. Mercier took an estate for life in the property settled, and the children took the remainder. Kinney v. Mathews, 69 Mo. 520. Such being the rights of Mrs. Mercier and her children, I am further of opinion, that the decree of the 23rd day of September, 1858, was void. The court had neither inherent nor statutory power to order a sale in a summary manner. Besides, Mrs. Mercier being a married woman she could not appear by attorney, and such an appearance cannot be construed to be either consent or request that G-illis should convey. The children were not made parties, and the decree could not bind them. It is a very significant fact, which maybe properly mentioned in this connection, that in this decree of 1858, the court construes its own decree of 1847, as I have construed it. The decree is as follows;

*495William Gillis, as Trustee for j Maria Louisa Mercier and her v Petition JEx Parte, FAMILY, AND MARIA LOUISA MERCIER. j

.Now at this day come the petitioners aforesaid, by their attorneys, and file their petition herein, praying for the sale of certain real estate therein, whereupon the court-doth find that said Gillis, as trustee aforesaid, in the month of September, 1847, had in his hands as such trustee, a certain amount of money, and that under an order of this-court of September term, 1847, the sum of $300 of said sum was_ ordered to be invested in real estate for the benefit of the said Maria Louisa Mercier and her family, with directions to take a deed for the same in the name of said Gillis, for the benefit of the said Maria Louisa Mercier and her familyr etc., etc.

The purchasers under this decree were fully notified of the rights of these plaintiffs. Nor can the conveyance from Gillis, who held the legal title, affect the rights of the plaintiffs. His trust ceased with the death of Mrs. Mercier, and the legal title vested in the children. Roberts v. Moseley, 51 Mo. 285; Baker v. Nall, 59 Mo. 265, 268. I would be unwilling to disturb the title of any person who-had purchased any portion of the property covered by the deed of the trustee, Gillis, on the faith of the decision of this court in Mercier v. Missouri River, Fort Scott & Gulf R. R. Co., 54 Mo. 506, but as the defendant in this case is the original grantee in the deed made by Gillis, I think the judgment should be reversed and' the cause remanded.