Baldwin v. Carter

17 Conn. 201 | Conn. | 1845

Williams, Ch. J.

Was the parol testimony admissible? If the evidence was offered to contradict or controul the bond, as seems to be supposed in the second objection, then we have no hesitation in saying it was not admissible. That principle is too well settled to need illustration or authority. But so far as it went to show the situation of the parties at the time, the object in view and the consideration, we are equally clear, that it was admissible.

In the case of Tyrrell v. Hope, 2 Atk. 558. 560. where, upon a marriage, settlement deeds were made out, by one of which an estate was conveyed to the husband after the mother’s death, which ought to have been given to the wife, and which was attempted to be rectified, by a note signed by the husband, that the wife should enjoy and receive the issues and profits of one half of that estate, after the death of her mother, the master of the rolls said, that if it rested on the note alone, no parol evidence ought to be admitted to explain the agreement between the parties. But he said further, I am certainly warranted in admitting this evidence, so far as it goes to the reason and occasion of signing this note. And so far we consider the question settled, by this court, at the last term, in the ease of Brown v. Slater, 16 Conn. R. 192.

The testimony offered to prove a mistake of the scrivener, in drawing the bond, was also objected to, upon the ground that it did not conduce to prove there was any mistake. Now, if all the evidence upon this subject was derived from the draftsman himself, as upon the first reading of the case might appear, there would seem some foundation for this objection; but it does not appear, (and we are told the fact was not so,) that this testimony from the scrivener was called for by the plaintiff. And when we come to look at all the other testimony, we cannot say, that it did not conduce to prove there wras a mistake in the draft of the instrument. This court is not called upon to weigh the testimony, but only to say, whether it was admissible ; to which we cannot return a negative answer.

But aside from any mistake in the instrument, the bond itself, coupled with the fact that it was given in contemplation of a proposed marriage between the parties, and iti consideration of it, lays a foundation for the relief sought by this bill.

The woman had a valuable personal property. By the marriage, the property would either become the husband’s, or subject to his disposal. Had it been their intention to leave it so, they would have entered into no stipulation concerning it. But they attempt, very inartificially indeed, to guard against this effect; and he binds himself, in a penalty of 4000 dollars, not to convert that property to his own use, without her consent in writing. What was that but an agreement that it shall remain hers ? It was then hers: the marriage would in law make it his. But he, under his own hand and seal, contracts, that he will not convert it to his own use, without her written consent. If he does not convert it, it must necessarily remain hers. There can be but one opinion as to the intent.

But it is not said, it is to be for her separate use. In the case above cited from Atk. the terms were “ she shall enjoy the issues and profits,” &c. The court say, it must have been for her separate use ; for to what end could she receive it, if it is the property of her husband the next moment ? 2 Atk. 561. Here, he binds himself not to interfere with it; of course, then, it must remain hers solely and separately.

It is objected, that there is no limitation of time. This is not necessary; nor is it common in transfers of personal property. But if the agreement is in effect a contract that the property should remain hers, there was no propriety in limiting a time.

It was again objected, that the consideration was not the marriage, nor the benefit of the wife, but to delay his own creditors. It is a sufficient answer, that this is not found. It was indeed one reason among others, which the defendant assigned ; but it was not unlawful, and it was for her benefit, if an arrangement w7as made, so that her property should not go to pay his debts.

Again, it is said, a bond has been taken ; if she has a remedy, she must resort to that. Bonds of this kind, in contemplation of marriage, are in equity agreements; which courts of equity will see performed. Prebble v. Boghurst, 1 Swanst. 318. Parks v. Wilson, 10 Mod. 517. And it makes no difference, that there is a penalty annexed. Courts of equity consider the penalty only as a collateral guaranty to the agreement, which shall remain a proper subject to be enforced by those courts. 1 Fonb. Eq. 161. Hopson v. Trevor, 2 P. Wms. 191. S. C. 1 Stra. 533. Howard v. Hopkyns, 2 Atk. 370.

These authorities are also an answer to the objection made to this bill, that there is remedy at law.

The law cannot give relief but by way of damages ; but chancery, keeping in view the fact that these parties meant to treat this property as the woman’s, will compel a specific performance, thus carrying into effect the intentions of the parties, guarding against the inability of the defendant., and protecting, as it always will, property held in trust.

When we look at the object contemplated, in connexion with the writing entered into, and the facts found as to the conduct of the parties, during the marriage, it is apparent, that the intention was, to protect this property from the rule of law, which makes it the husband’s. The draftsman has not taken the best method to accomplish the intention; but as it can be fairly ascertained, no reason exists why it should not be carried into effect.

It was claimed, that upon the death of the wife, the property became the husband’s; and the case of Stewart v. Stewart, 7 Johns. Ch. R. 239. and other cases, were cited to support this proposition. That case and the others, so far as we have had opportunity to examine them, proceed upon the ground, that in such cases, where the wife has the power of disposing of her separate property, and does not, it shall go to the husband, as survivor or as heir. The laws of England and of New-York give him the right, as administrator, or as heir, to the property of the wife. But in states where the husband does not take as administrator, nor as heir, that cannot be the case. On the contrary, that very principle will give it here to the administrator, who only has the right to cal J for, and distribute, intestate estate. In this case, then, the plaintiff, by those authorities, must be the legal claimant. The husband is not heir, nor can he claim as survivor.

So far we have treated this bond as a valid instrument at law. But if we consider it extinguished, by the marriage, as the plaintiff claims it was — even then courts of equity hold, that contracts of this kind, fairly made, ought to be supported according to their true intent, which they will not permit to be defeated. 2 Kent’s Com. 163. 165. (2d ed.) And when there is no trustee, they will consider the husband himself as trustee. Darley v. Darlcy, 3 Atk. 399.

It is said on behalf of the defendant, that this is contrary to the policy of our law, and ought not to be adopted ; and indeed, it is claimed, that the contrary principle is established, in the cases of Hutton v. Dibble, 1 Day 221. and Nichols v. Palmer, 5 Day 47.

The defendant’s counsel seem to suppose, that there is no difference between an ante-nuptial contract and one made after marriage. Ch. J. Swift, however, who was entirely against the decision in the case of Nichols v. Palmer, does not hesitate to say, that these ante-nuptial contracts will be valid in a court of chancery, and that the husband will be decreed to carry them into specific execution. 1 Sw. Dig. 29.; and the cases of Selleck v. Selleck, 8 Conn. R. 85. n., Andrews v. Andrews, 8 Conn. R. 80, and Brown v. Slater, 16 Conn. R. 192. we consider as having settled that question.

The case, then, shortly, is this. This defendant, upon his marriage, stipulates with her whom he is about to marry, that he will not interfere with her property. This he faith-folly performs until' her death, and then refuses longer to treat it as hers. Ought a court of equity to enforce such an agreement 1 We think justice requires it;, and no authority has been adduced, which prevents the court from administering that justice. We therefore advise, that the plaintiff is entitled to the relief sought.

In this opinion the other Judges concurred, except Storks, j. who was absent.

Decree for plaintiff.