43 N.C. 157 | N.C. | 1851
The opinion given in this case, at December Term, 1850 (see
STATE OF NORTH CAROLINA — Johnston County.
This indenture, made and entered into this 14 March, 1837, between Blackman W. Lee, of the county of Sampson and State aforesaid, of the first part, and Mary Hooks, of the first named State and county, of the second part, witnesseth: *104
That whereas the said Blackman W. Lee and Mary Hooks having entered into an agreement of marriage, which marriage is soon to be solemnized, and the said Mary Hooks being of her own right seized and possessed of a large real and personal estate, is willing and anxious so to execute that the said Mary Hooks shall not be deprived of the use, benefit, and profit of the said estate, real and personal, by reason of their intended marriage, and the said Mary Hooks being of lawful age to be her own agent, now, therefore, be it known that for and in consideration of the premises and for and in consideration of the sum of $1 to me, and said Blackman Lee, by the aforesaid Mary Hooks, before the sealing and delivering of the presents, the receipt of which is hereby acknowledged, I, the said Blackman W. Lee, do hereby sell, assign, and deliver, alien and confirm, and have by these presents sold, assigned, aliened, delivered, and confirmed, unto Mary Hooks aforesaid all the right, title, estate, interest, and benefit which I may by operation of law acquire, derive, or receive, either in law or equity, in and to the following real and personal estate now belonging to the said Mary Hooks by reason of the said intermarriage between the said (159) Blackman W. Lee and Mary Hooks, viz.: Twenty slaves, named Owen, about 27 years old; Pompey, 50 years; Charles, 30; Eliza, 24; Harry, 16; Baltimore, 14; Cader, 10; Henderson, 7; Isaac, 5; Simon, 5; Alvin, 2; Sawney, about 1 month; Patience, 40; Amerite, 25; Rose, 24; Zeny, 19; Ginney, 10; Margaret, 8; Mary, 3; Martha, 2. Also one tract of land in Sampson County containing 830 acres, lying in the fork of Big Cohera and Ward's Swamp, adjoining A. Fleming and Joshua Craddoe; also two tracts of land in the county of Johnston, being the place where the said Mary now lives, containing 807 acres, bounded as per deed from Susanna Blackman to said Mary Hooks, dated 21 February, 1829; also another tract of land joining the above, containing 30 acres, as per deed from John Eason to said Mary Hooks, bearing date 10 December, 1832; also one closed carriage and two horses, to have and to hold all and singular the aforesaid lands, negroes, carriage and horses to the only use and benefit of the said Mary Hooks, her executors and assigns forever. And the said Blackman W. Lee doth solemnly promise and agree to and with the said Mary Hooks that he will, upon the solemnization of the said marriage, or at any time thereafter when requested by said Mary, make, execute, and deliver all and every necessary title, deed, or conveyance, advised or directed by counsel learned in law, more completely and effectually to secure the intention of this indenture, which is entirely to divest himself of right, title, and estate in and to the above mentioned lands, negroes, carriage, and horses, so that he nor his creditors shall have any right to sell or contract the same or any part of said lands, negroes or their increase, *105 carriage, and horses. It is further agreed and understood by and between the contracting parties aforesaid that the lands, negroes, and chattels may remain in the use and occupancy of the said Blackman W. Lee, he paying therefor by way of hire or rent the sum of $1 on the first day of January in each and every year, if demanded. It is further agreed by the between the parties to this indenture that if it shall be desirable to sell or exchange the whole or any part of the above mentioned real and personal property, the said Mary may transfer and lawfully convey the whole or any part of said real or personal property (160) to any person whatsoever, receiving a fair and full consideration for the same, which consideration, whether it be in money or property, she shall hold and possess and keep in the same manner as the property hereby conveyed is to be held and kept; and this indenture to be as binding and legal as if a third person had been appointed as agent or trustee, the said Mary acting as her own agent and trustee.
In witness whereof the parties have hereunto set their hands and seals the day and year above written. BLACKMAN.W. LEE. [SEAL] MARY HOOKS. [SEAL]
Signed and sealed in presence of: JOHN EASON and YOUNG ELDRIDGE.
STATE OF NORTH CAROLINA, } Johnston County. } August Term, 1837.
Then was this marriage contract duly proven in open court by the oath of John Eason, and ordered to be registered.
R. SANDERS, Clerk.
The propriety of bringing up in this manner the same question which has been solemnly decided on demurrer and appeal in this very case is worthy of consideration, and it is not to be understood as admitted, because the Court in this instance considers the matter again.
The merits depend on the inquiry, whether the defendant's renunciation of his marital rights in his wife's estates was intended to be partial or total, except as herein specially excepted.
It is to be noticed at the beginning that the agreement is not a settlement, and, as such, to be taken as duly and fully expressing the well considered and final family arrangements by these persons of their estates; in consists of articles in the form of covenants between the parties themselves, without any trustee. Such a contract is considered in a court of equity as containing but notes of the heads of an agreements, in its nature executory; and it has been long settled that (161) the trusts created by it are to be favorably moulded in equity, so *106
as to effectuate the intention of the parties in reference to provisions for themselves, for the issue of the marriage and such other persons as were apparently within the contemplation of the parties. Gause v. Hale,
The agreement begins by saying that the feme, being in her own right entitled to real and personal estate, "is anxious so to execute that the said Mary Hooks shall not be deprived of the use, benefit, and profit ofthe estate, real and personal, by reason of the intended marriage." Then it proceeds: "That in consideration of the premises I, the said (162) B. W. L., do sell, assign, deliver, alien, and confirm unto M. H. aforesaid all right, title, estate, interest, and benefit which I may, by operation of law, derive or receive at law or equity by reason ofthe intermarriage between the said L. and M. in and to the real and personal estates now belonging to said M." It is impossible to read those clauses without seeing that the purpose was to declare, first, that thefeme meant to have her whole estates to herself, and that the benefit of and in them should not be impaired in any respect by reason of her marriage; and, secondly, as the mode of carrying that out, that the husband, as such, should not, directly or indirectly, derive any estate or benefit in the wife's property. That clause is in the form of a grant from the husband to the feme. But that only shows the plainer the writer's ignorance of the legal character of the instrument. It does not hide the intention, but rather requires a liberal extension of the terms to give effect to the intention thus apparent. The plain meaning and effect of the provision is that he conveyed to her, that is, renounced for himself, all the benefit which, "by operation of law," that is, as husband, he might derive, either at law or in equity from her property. To *107 exhibit that purpose still more distinctly, if possible, the husband in a subsequent part of the articles again covenants that he will, at any time after the marriage, execute any proper deed of settlement which counsel may direct, "more completely and effectually to secure the intention of this indenture, which is entirely to divest himself of right, title,and estate" in the property. It would seem that nothing could be more explicit as an abandonment of all claim, jure mariti, during the coverture, or after its termination. No partial renunciation was in the contemplation of the parties, but, on the contrary, the entire divesting of all his interest in the estates. It was urged, however, that this last clause is qualified by what next follows: "So that he nor his creditors shall have any right to sell any part" of the property, whence it was inferred from the phrase, "so that," that his renunciation was (163) partial that is, only to the extent that the property was not liable to his debts, or to his disposal during the coverture. But that is clearly not the sense of that passage, for it would render it not a qualification, but a direct contradiction of the clause to which it is appended. That clause had a declaration plain, that he was to be entirely divested of all right, and, therefore, the subsequent "so that" merely expresses one example or consequence of the preceding provision and not a restriction on its generality.
It was further argued that, notwithstanding all this, the husband must succeed, because there is no express provision that in the event which has happened — of the wife's dying without making a disposition — he shall be excluded and her next of kin let in. How it might be upon a settlement, silent as to that state of things, but with express provision for such entire abandonment as is found in these articles, it is not necessary, and perhaps not easy, to say. But undoubtedly, upon such marriage articles, it is obviously more near the intent to imply a trust in favor of those who take by law when the husband is out of the way. And it is competent to imply such a trust under articles, because on them, as before said, the inquiry is not tied down to the sense of the positive provisions alone, as in the case of a solemn definite conveyance, but is the larger one, what sort of settlement would be made under the directions of the Court upon the articles, in order to execute them specifically according to the intent. Then, it is plain that when the husband comes in and says he is to have nothing by operation of law under any circumstances, such a settlement must be decreed as will exclude him at all events, that is, as well from succeeding to his wife's estate at her death as from taking it during her life, except so far as there may (164) be other express provisions in his favor on the face of the agreement. He being thus excluded, the implication arises, of necessity, that those are to take who would do so if there were no husband, and *108 consequently the settlement would be directed to contain a trust for the issue of the marriage, if any, and if not, for the heirs generally and next of kin of the wife. Those persons would thus not take by descent and succession in the character of heirs and next of kin, but the settlement would make those who were the heirs and next of kin purchasers under it. These conclusions are the more satisfactory in this case when one adverts to the remaining portions of the agreement, for although incompatible to a great extent with the previous entire renunciation of any benefit, the next stipulation is that the husband is to have the actual use and benefit of all the property during the coverture at a nominal annual rent and hire, if demanded by the wife, not leaving her a general power of disposition, but restricting her power to exchanging or selling the property for a fair and full consideration in money or property, which is again to be held in the same manner as the original stock under the agreement; thus, by a final express provision, he has the substantial enjoyment and property of all the estates during the coverture. Consequently, if the wife's absolute right to the property and his renunciation and entire divesting of right, so repeatedly mentioned in the previous parts of the agreement, are not to arise at the termination of the coverture, one is at a loss to assign any meaning to the parties or any operation to their contract. She is restrained from giving away the property, and can only change its form by a contract for a valuable consideration, and of the whole he is the beneficial owner during their joint lives. Then, he gave up, according to the agreement, only her right by survivorship, and not even that unless he gave up also (165) his right of succession as husband, if he should be the survivor, for they both stand on the same footing, since there is no express provision for her taking the property if she should outlive the husband more than there is for his not taking it, should he be the longer liver. But the truth is that each is implied, and the one as much as the other, both from the language in parts of the articles and from the absurdity of the whole agreement without such an implication. Hence, the opinion of the Court is, as it was before, with the plaintiffs.
Those positions are sustained by authority, and, indeed, by most of the cases cited for the defendant. In Murphey v. Avery,
PER CURIAM. Decree accordingly.
Cited: Perkins v. Brinkley,