The opinion of the'court was delivered by
Gibson, C. J.
It is conceded, that this is not a case of accident or mistake, calling for the intervention of a chancellor to reform the instrument; but one purely of construction. At law, it is the case of a contract executed, and passing nothing but real estate, actually *87in the grantor at the time of the delivery; and it can be turned into an agreement in equity, only to subserve some clear and indisputable intention inconsistent with the legal effect of the instrument. Here that effect is to pass nothing; for nothing, as regards the Vine Street property, the proceeds of which are in contest, was in the parties. The only case in which an interest, resembling the present, has been held to pass by a conveyance of the land, is that of a grantee of lands, within the seventeen townships which had been certified to a Connecticutúúmzat', [Evans v. The Commonwealth, 2 Serg. & Rawle, 448,) and there the grantee was permitted to recover the compensation allowed by the state; but only because it was considered, that before compensation made, the divestiture was incomplete. What proof then have we that the proceeds of the Vine Street property were intended to be substituted for the property itself? The actual intent can neither be ascertained nor conjectured. The parties may possibly have supposed, thát the proceeds would be covered by the defendant’s covenant to account for his wife’s personal property, derived from her father’s estate, of which he should be possessed at her death; and if such a supposition were clearly disclosed, it might, perhaps, give rise to an equity which we ought not to disregard; or, what is more probable, they may have intended to withdraw the property from the operation of the settlement altogether; and, for either of these reasons, a new conveyance, adapted to the altered circumstances of the case, may have been deemed unnecessary. But the first is inconsistent with the notion, which has been earnestly pressed on us, that the proceeds passed by the grant of the property itself; with, or without which, I am unable to perceive how the plaintiff can make out a case. If they passed by this, which is the only operative’ clause in the deed, they did so with all the attributes of real estate, and subject to the uses and limitations expressly attached to them as such; consequently, the defendant would be entitled, during his life, as tenant by the curtesy. If they did not pass by that clause, then the deed contains no clause applicable to them;, and the act of turning the property into personalty, would have the effect of subjecting it to the defendant’s marital rights, and giving it to him absolutely. For it is only by introducing the proceeds into the settlement, as a substitute for the estate, that they can be made out to be the personal property of the wife, and subject to the husband’s covenant to account for them as such, being derived from her'father’s estate. But it is impossible to treat the proceeds as real estate, only for the purpose of giving the wife an interest, and personal, for the purpose of subjecting it to the husband’s covenant. It may be either the one or the other; but it will, necessarily, be attended, throughout, with all the incidents off the character, which we shall first attribute to it; and this is a dilemma from which I see no escape.
The true construction is, however, that it did not pass at all. ■ *88That the parties intended to include the Vine Street property, when the conveyance was prepared, is perfectly clear; but it is equally clear that they had changed their intention when it was executed. It is nearly impossible to refer their having parted with the title, in the mean time, to any other motive. If there were no other estate on which the conveyance could operate, that would make the case a perplexing one; perhaps any construction would be adopted to prevent the deed from becoming a nugatory act. But here, there was a large estate besides, which passed by the conveyance. It w.as, no doubt, believed, that the retaining of the clause which relates to the Vine Street property, could do no harm, as nothing was left for its operation; and the existence of it is attributable to a change of intention, without a correspondent change in the terms of the conveyance having been deemed necessary. An analagous construction is always adopted in the case of a settlement preceded by articles, ánd executed before the marriage; which will not be reformed so as to render it conformable to the articles, unless it purport to have been made in pursuance of the articles, or there be proof of mistake dehors; the variance being attributed to a change of intention, which the parties had a right to make. Here there is nothing to indicate the existence of any but a partial change of intention, or, if there were, to raise an equity from it; the legal construction being the natural one,—that the parties intended to withdraw the Vine Street property from the settlement altogether, leaving the proceeds of it to the legal consequences of the marriage. A contrary intent, clearly and explicitly made out, is necessary to the success of the plaintiff’s case; without which we cannot hold the defendant accountable.
That the defendant is not bound to account for monies received from the executors of the wife’s father, in the shape of interest, which accrued subsequently to the date of the settlement, when he became entitled to the use of the principal, is so entirely consistent with reason and the intention of the parties, that it is but necessary to state the proposition, without entering into a particular discussion of it.
. The remaining inquiry is, whether the defendant is entitled to a eredit for filling up certain vacant lots which he purchased for the benefit of his wife, pursuant to the settlement, and for paving and curbing opposite to them. The paving and curbing, it seems, were required by the ordinances of the city, and it has very properly been conceded, that this part of the charge is unobjectionable. But I cannot perceive how expense incurred in filling up and rendering the lots productive, can be distinguished from it. The settlement ought, in this respect, to be beneficially construed in favour of the object, and all this expenditure may, therefore, be fairly put down to the original cost. On all the points we are of opinion with the defendant.
Judgment for the defendant.