#### TOBIAS KOONCE et al. v. HARDY BRYAN et al.

A post-nuptual settlement made in favour of a wife by a husband, in pursuance of an agreement before marriage, will, if variant from such agreement, be reformed in a Court of Equity; and, consequently, if by accident, or misapprehension of its legal import, the husband makes such settlement, in accordance with the ante-nuptual agreement, when he designed, after marriage, to vary it, even with the consent of his wife, he cannot be relieved.

In 1817, the plaintiff, Kqonce, by way of provision for his then wife, Holland, executed to the defendant, Bryan, a settlement of four slaves, named Violet, and her three children, Norris, Betty and Sukey, upon the following trusts: for the husband during his life; and if his wife should survive him, in trust for her and her executors *228absolutely; with power to the wife, at any time during her coverture, notwithstanding the same, to appoint, by any writing under her hand, the said slaves, or any of them, to any person or persons she might choose to have them, after the death of her husband; and in case she should make such appointments, then, in trust for such appointees. The deed then provided, that if the wife should survive her husband, and set up any claim to dower, or a distributive share of his personal estate, other than he might give her by will, all the said trusts should cease, and the slaves belong to the estate of the husband. In the beginning of the deed it was recited, that the four slaves had belonged to the wife, and that it had been agreed before the marriage, that they should be so settled on her, that, if she should survive her husband, she should be put to her election, to relinquish them altogether, or to accept them as a provision in lieu of dower and her distributive share. The description of the slaves in the deed, as first written, appeared to have been as follows: “Violet and her increase, Norris, Betty and Sukey, and their increase, present and future? which is altered so as toread, “ Violet and her increase, to imt, Norris, Betty and Sukey, only? Violet had another child, called John, who was born after the intermarriage; and, as alleged by the plaintiffs, in March, 1817, and before the execution of the settlement. On the 3d of February, 1822, Mrs. Koonce, by two deeds, appointed artd conveyed to her neice, Mary Gunter, the slaves, Norris, Betty and John; and to her neice, Eliza Wright, the other two slaves, Violet and Sukey, to be conveyed to them by the trustee, after the deaths of her husband and herself; and she soon after died, leaving her husband surviving, and having all the slaves in his possession. The slave Sukey afterwards had issue, Chelcy and Charles; and on the 10th of January, 1830, the plaintiff Koonce gave the three, by deed, to his daughter, the plaintiff Máry, and they were taken into possession by her husband, the plaintiff John Pollok. The slave Betty also had issue, Henry and Isaac, and the plaintiff Koonce, on the same day gave those three, in like manner, to another daughter, Matilda, whose husband, Benjamin Huggins, *229one of the plaintiffs, took them into his possession. Violet and John were then in the possession of Koonce himself. Since the deeds of gift of the 10th of January, 1830, each of the women, Sukey and Betty had had other issue, which were in the possession of, and claimed by Pollok and Huggins respectively. The defendants, the donees of the wife, claimed the ultimate remainder, in all the original four slaves, after the death of Koonce, and also in all their increase, including the said John.

*228December, 1835.

*229The bill was filed in 1832, by Koonce and his two sons-in-law, Pollok and Huggins, and their wives, and stated that the settlement was made in pursuance of “ an agreement and understanding” between Koonce and his wife, before their marriage, that her negroes should be settled to the use set forth in the deed of 1817, except that it was a part of “ the understanding,” that the four she then had, and those only, should be so settled; and that their issue, born in the life-time of said Koonce, should not be subject to the disposition of the wife, nor be held in trust for her, but. should belong absolutely to the husband: that the deed was not drawn before the marriage, but that Koonce was willing, after marriage, fully to comply with the previous agreement; and that, accordingly, he and his wife both applied to the defendant, Bryan, to act as trustee, and communicated to him fully and expressly, the nature of the ante-nuptual agreement, whereby the issue that might be born, prior to the death of Koonce, should be reserved to, and belong to him; and requested him, Bryan, to have a settlement prepared accordingly, which he undertook to do: that in some short time afterwards, Bryan presented to Koonce the settlement already mentioned, which he represented that he had caused to be prepared by counsel, in execution of, and in conformity to the agreement and directions before stated; and that Koonce and Bryan, both believing that the deed did conform to the directions and intention of the parties, they each executed it in September or October, 18.17. The bill then stated, that in the year 1832, the donees of Mrs. Koonce made known their claim to the negroes born since the marriage; and that the plaintiffs then applied to Mr. Bryan, to peruse the deed, and *230discovered that it was so framed, that it was doubtful, as they were advised by counsel, whether, according to its provisions, the said issue, born since the deed was made, did not belong to the defendants. The bill then charged, that if such were the construction of the deed, it was erroneous in fact, and was executed by the parties under a clear mistake of the contents and meaning of the instrument; it having been the intention of the parties, and the explicit instructions given to Bryan, and by him to the solicitor who drew it, that such issue should be excepted out of its operation; and that such intentions and instructions were necessarily inferable upon the face of the deed, from the erasures and interlineations, which show its readings, as first drawn and finally settled, as before mentioned: that Mr. Bryan then admitted the error in the deed, and the mistake under which it was executed, and was willing to correct it, but did not feel at liberty to do so, without the directions of the Court. The bill further stated, that the slave John did not pass under the settlement, as he was born before it was made; and that the plaintiffs could then prove that he was born in March, 1817; but that it would probably be impracticable to do so after the death of the plaintiff Koonce. The prayer was, that the appointment of John might be declared invalid; that the proper construction of the deed as to the other issue might be declared; and if the said issue were thereby subject to the appointment of Mrs. Koonce, that the mistake under which the settlement was executed in that form might be declared and the settlement reformed accordingly; and that the trustee and the other defendants might be decreed to execute proper releases to the plaintiffs respectively.

One of the donees was an infant, who answered by her guardian, and denied all knowledge of the matters charged in the bill.

The other denied all knowledge or information of the mistake alleged, and said ihat her aunt always-claimed the issue and the power of disposing of them, as well as their mothers; and that she supposed it was so intended in the agreement before the marriage; that she did not know *231when John was born, but that he was claimed and conveyed by Mrs. Koonce, as hers, after the death of her husband.

Mr. Bryan put in an answer, and his deposition was taken by the plaintiffs; and in each he stated that Mrs. Koonce owned the four slaves, Violet, Norris, Betty and Sukey; and informed him of the proposed marriage, and requested him to have a marriage settlement drawn between Koonce and herself, whereby she should have the exclusive right to her own slaves, and the power of disposing of them by will or writing during the marriage, reserving therein the use for his life to Kopnce; and that he would act as her trustee; to which he assented, if it were agreeable to the proposed husband; and that in a few days Koonce himself made the like communication and request. He had no further recollection of the nature or terms of the contract, as then, or at any time before the marriage, related to him. Some time after the marriage, but how long he could not say, the husband saw him on his way to Newbern, and said he was willing to settle his wife’s negroes on her, as he had promised, and requested Bryan to have a deed prepared, as he would then have an opportunity of seeing counsel, — then saying and giving particular charge to him to have it so drawn as to give to his wife no power or control over the increase of the negroes born, or to be born, during his life, as he could not nor would not raise young negroes for any person but himself. Mr. Bryan gave the instructions to counsel as directed, who prepared the draught and read it to him; that upon hearing it read, he perceived that in respect of the increase it did not conform to the orders of Koonce, and he required the draftsman to correct it, which he did by running a pen through the words “ increase present and future” and inserting “ to wit” and “ only,” so as to make the deed read as before-mentioned. The attorney then said, that thus altered, it did express the agreement according to his instructions; and so believing, he took the deed home, and read it over and explained it to both Koonce and his wife, as leaving the issue of the four slaves *232to Koonce;' and under that belief,entertained by all three, it was executed by Koonce and Bryan.

Badger, for the plaintiffs.

J. H. Bryan and W. C. Stanly, for the defendants.

Ruffin, Chief Justice,

having stated the case as above set forth, proceeded as follows: — The legal operation of the deed admits of no dispute as to the issue of Betty and Sukey. Their issue follows themselves, of course. A question might be made upon the subsequent issue of Violet, upon the ground of the particular restriction to the three children she then had, and to them only. But the Court does not deem it material to determine it, as it could not, if in favour of the plaintiffs, afford a foundation for any relief to the plaintiffs upon these proceedings. The equity of the plaintiffs obviously depends upon the terms of the agreement itself' between the parties to the proposed marriage, and the departure or conformity of the settlement founded on it.

It could scarcely be doubted by any person, that the deed, as. drawn, varies from the intentions of the husband and trustee, existing at the time of its execution ; and from the instructions given to the draftsman. The testimony of Mr. Bryan is precise, positive and clear to that point. His credit is not questioned by the defendants; and indeed stands .apparent upon the fair and candid manner in which he speaks in both his answer and deposition. He does not therefore need the support, in respect of his credit, of the testimony of the solicitor who wrote the deed: Nor is the case open to the objection made at the bar, that the deed ought not to be altered upon parol testimony merely, especially that of one witness. The instrument itself bears upon its .face unequivocal evidence that the instructions given were not understood or not regarded; and denotes that some such alteration as the witness speaks of was aimed at by the writer, when he made the erasures and interlineations which altered the reading of the instrument, the whole being still legible. This part of the case _ does not therefore rest on parol testimony merely ; but is *233fortified by the writing itself, and that in a stronger manner than if there had been separate written articles or memorandums; because these last might possibly have been departed from by a new agreement béfore the deed was settled. The Court therefore is obliged to perceive, that the deed is not conformable to the instructions, and was executed by the husband under a mistake as to its contents and legal operation,

But assuming these facts, it is, nevertheless, our opinion, that the plaintiffs cannot have a decree. It seems to us that the instrument, has, by accident, — supposing it to be in all respects as contended by the defendants, — been framed exactly as it ought to have been, according to the original agreement between the parties. This is a post-nuptial settlement, professing to be executed according to an agreement before' marriage, and mustvof necessity be subject to the control of the agreement, as the execution of the deed is then the act of the husband alone, and the wife is - in his power. If the agreement had been by written articles, there could be no doubt upon the subject; for in some cases, even where the settlement had been executed before marriage, it has been reformed according to the articles, when it was apparent that the departure did not arise from a change as to the terms of the agree-’ ment, but that it was intended to pursue the articles, and they had been mistaken. The Court has always modelled articles so as to effectuate the intention of the parties; and when, by following the words of the articles, a settlement drawn under them, even before marriage, would give the husband an estate-tail, or would give the estate to the issue of /the husband by another marriage, the settlement has been dealt with so as to make it conform to the-articles according to their true construction, and not their strictly verbal sense. Seymore v. Boreman, cited 2 Meriv. 347. Randall v. Willis, 5 Ves. 575. Wert v. Errisey, 2 Pr. Wms. 355. Much more clearly will the Court hold the husband to the articles, when the whole rests in executory contracts until after the marriage; for then the husband has every thing in his own hands,' arid the wife cannot vary her agreement. *234The question therefore is, what was the original agreement in this case. Unfortunately it rested in parol; and no person pretends to state its precise terms, so that the Court is obliged to collect it from the circumstances; and therefore some uncertainty must be felt as to the absolute correctness of our conclusions. Perhaps, however, as ittle exists here as could be expected in any case. The bill charges that it was distinctly agreed before the marriage, that the husband should have all the issue of the slaves that might be born in his lifetime; and that the power and beneficial interest of the wife should extend only to the original stock; all which was communicated to Mr. Bryan, the trustee, by both the parties, before marriage. That is a most material allegation to the plaintiff’s equity. But it is not sustained by proof. As the agreement was by parol, and Bryan does not profess to recollect all that the parties told him before the marriage as to the nature of their respective interests, it has been argued, that the terms of the agrément in this respect may be collected from the concurrence of the views of all the parties, respecting the settlement, as the same was understood by Bryan, and explained by him to the others, when it was executed. It is said, that this was not a new provision introduced first into the settlement, but that its existence there, without objection, proves that it entered into the original agreement. The Court does not inquire, whether such an inference is just or legitimate in transactions between husband and wife; for it seems to us, that the inference itself cannot with truth be made.

In the first place, neither the husband nor the trustee alleges any other departure in the deed from the instructions or from the agreement, but the one respecting the slaves that might be born. Mr. Bryan says, he cannot recollect any part of the agreement as communicated to him before the marriage, except that the wife was to have all her slaves secured to herself exclusively, subject to the life-estate of the husband, with power to her to dispose of them after his death. No doubt, there were other stipulations. What were they ? Was the absolute gift of the issue to the husband one of them ? We deem it nearly certain that it was not. There is not a defect of evidence as to the other *235parts of the agreement, although Mr. Bryan, or any other witness does not speak to them. The deed fully supplies all necessary light on this subject. It .shows, that the wife was to renounce all her marital rights in the husband’s estate, real and personal. Being prepared after marriage, upon an agreement by parol, the deed puts her in this respect to an election. But that the deed speaks the substance of the agreement upon this subject, is not at all controverted. If that be so, it is scarcely possible that it could ever have been proposed by the intended husband, or assented to by the wife, that she shpuld be put off with the inadequate provision of her own four original slaves in her old age, when those slaves might be also aged or have died : that the husband shpuld keep all his own estate; be entitled by the law to all that should fall to her during the coverture; and also, under the settlement, to all the profits, and issue of her negroes then in possession. It appears that both the parties were advanced in life at the time of marriage, and the husband had'a family of children; and it is not uncommon under such circumstances, that expecting no issue of the marriage, each keeps his or her own estate, and renounces that of the other. The husband, of course, takes the profits during the coverture, when he supports the wife; and she might be willing to bestow her slaves on him, during his own life, in preference to her own relations. But it cannot be supposed, that she could possibly agree to do so, and strip herself, so as to be destitute in her widowhood and old age.

Then, according to the agreement at stated to Mr. Bryan, before the marriage, the issue followed their mothers, and belonged to the wife — that being the legal effect of it. He can state nothing to the contrary. The other provisions of the deed, which relate to such parts of the contract, as the witness has forgotten, strongly sustains her claim, as having been then expressly recognised. It can moreover, scarcely be supposed, that Mr. Bryan could have forgotten this particular part of the agreement, now alleged by the plaintiff, if it had been mentioned to him before the marriage, more than he has the subsequent instructions. If nothing was said about the issue before *236marriage, the effect is the same, as if they were expressly reserved to the wife. From all which, the Court deems it clear, that the stipulation, that the issue should belong to the husband, was a new one, first suggested' to his mind after the marriage, and probably after Yiolet had another child, and was improperly designed by him to be interpolated into the settlement. If the attempt had been successful, the Court upon this evidence would have been constrained to modify the settlement, so as to secure the issue to the wife; and consequently cannot, in the case which has happened, alter it, so as to take the issue from her.

This conclusion renders it unnecessary to make any declaration as to the period of the birth of the boy John, upon which point, however, the plaintiff has not offered any proof. For if he was born before the execution of the deed, and therefore did not pass by it, still, as a part of the issue embraced in the original agreement, he belongs in equity, as between these parties, to the donee of the wife. But these proceedings do not authorize any relief to either party in relation to that slave; not to the plaintiff, for want of proof and for want of equitable right; and not to' the defendants, because if John was born before, and did not pass by the deed, the donee of the wife must file her own bill to get a title,,if the other party should still hold out. But the present plaintiffs have no title, and their bill must be dismissed with costs to the defendant Bryan, and the defendants Bryan Jones and wife.

Per Curiam. Bill dismissed.