#### ELIZABETH ELLIOTT v. JAMES T. ELLIOTT, Admr. of MARTIN ELLIOTT, et al.

June, 1835.

A deed whereby a husband conveyed to his wife several slaves, without the . intervention of a trustee, will not be set up in equity, where the parties lived unhappily, whore there was no evidence of a delivery, except the production of the deed by the wife after the death of her husband, and where she had never claimed the slaves during the husband’s life, but had permitted them to be sold by his administrator, and had purchased some of them.

The bill charged, that a marriage had taken place between the plaintiff and the defendant’s jntestate: that it it was very unequal, the plaintiff being a young woman, and her husband a very infirm old man: that for the plaintiff’s kindness and attention to.him, the defendant’s intestate frequently promised to make provision for her over and above that allowed by law: that in execution of this promise, he, on the tenth day of April, 1827, in the presence of two witnesses, executed a deed, whereby he conveyed directly to the plaintiff five jnegroes : that on the 20th November, 1828, he executed another deed, whereby he conveyed all his land, and all his personal estate mentioned in a schedule thereto, to the defendant James, upon trust for the intestate during his life, and then for the plaintiff’s dower, and by an interlineation in the schedule, directed several negroes, ámong whom were those which he had by the deed of April 10th, 1827, conveyed directly to the plaintiff, to be held for her use. The bill then set forth the death of the husband, in March, 1831 ; the administration upon his estate by the defendant James; and averred, that he had sold all'the slaves intended for the plaintiff.

The heirs and next of kin of the intestate were made defendants; and the prayer was, that the deed of April, 1827, might be set up, and that the defendant might have her dower assigned; and for an account of the personal estate, and distribution thereof.

The deeds mentioned in the bill were filed as exhibits. That of April, 1827, was a deed by Martin Elliott, -to the plaintiff, whereby “ in consideration of the love and *58natural affection I had for my beloved wife Elizabeth Elliott, I have given, granted, and delivered the following ne§r0 s^aves»” &c- It was attested by Samuel S. Gedney and John MTntire, and was registered in July, 1832.

The deed of November 20th, 1827, was in the usual form; the use, after payment of debts, declared to be to “ the said Martin Elliott, during his natural life, then equally to be divided among the lawful distributees of said Martin.” Endorsed on this was the following, bearing the same date, and signed by the defendant’s intestate. “ An inventory or schedule of the negroes, stock, &c., referred to in the annexed deed, viz. Jim, Kate,” &c. After mentioning several, among them those included in the deed of April, 1827, the following words were interlined, “ all to be to my wife Elizabeth, and their increase.”

By another endorsement, dated the 20th of April, 1828, after mentioning other articles of property, it proceeded, “ and now my will and desire is, that all the above-named property, and the balance of my estate, shall be sold by James T. Elliott, and equally divided between my lawful distributees.”

The defendants submitted to have the plaintiff’s dower assigned, and also to an account and distribution of the personal estate, but they severally objected the following facts, as a defence to her claim to have the deed of April, 1827, established. That the marriage between the plaintiff and the intestate was very unequal, and probably very interested, she being seventeen years of age, and her husband upwards of eighty — she being very poor, and he possessed of considerable estate: that the match was an unhappy one, the plaintiff being an undutiful wife: that she had been in the habit of despoiling his house of furniture, and had been accused by him of breaking open his desk and stealing his money and notes: that they had frequently quarreled and parted, and that two months after the date of the deed of April, 1827, he had advertised her as having left his house, and cautioned all persons from harbouring her, or contracting debts with her: and it was insisted, that the intestate’s reason was impaired by age, and either that the deed never had been deliv*59ered, or was unfairly obtained. In support of this defence, it was stated, that after the death of the husband, the plaintiff attended a public sale of the slaves of the intestate, made by the defendant James, at which the negroes included in the deed of April, 1827, were sold, when she made no claim to them, but on the contrary actually purchased two of them. All the facts above-mentioned were established by proof.

Samuel S. Gedney proved the signature of the deed of April, 1827, by the intestate. He stated, that it was signed at tiie house of the intestate, and that he, the witness, attested it at his, the intestate’s, request, no other person being present, and nothing being said of its contents, and that after the attestation, the intestate took it into his possession. The other attesting witness, MTntire, swore, that the intestate came into his store, about twenty miles from his, the intestate’s, residence, alone, with the deed in his possession, and requested him, the witness, to attest it; that he did so, and handed it back to the intestate, who requested that the matter might not be mentioned, saying, that he always intended to do something for his wife, but did not wish his family to know it until after his death.

The attesting witness to the deed of November, 1827, proved, that the intestate signed and sealed it in his presence, and directed him to retain it in his custody; that upon two different occasions he called for it, and at the first made the interlineation, and at the second executed the last endorsement.

Devereux, for the defendant.

The deed of gift was not fairly obtained. The marriage was entered into on the part of the plaintiff upon a pure speculation of gain. The husband was a weak and infirm old man, and the character and conduct of the plaintiff towards him showed an evident disposition to despoil him of his property. A Court of equity interferes only in furtherance of morality. There must be something fixing upon-the conscience. A defective deed in favour of a child will be set up, but not one in favour of a wife, even if it be not fraudulent, if she afterwards misbehaves.

*60In this case the plaintiff did not rely upon the deed; she set up no claim under it until some time after the death of the husband, and after she had purchasea some of the negroes at the sale of his administrator. The deed was not fully executed, no delivery being proved; and a Court of Equity will not set up such an instrument, where it was evident the husband did not intend to part with it.

Gifts of the husband direct to the wife may, under circumstances, be supported ; but there must be evidence to show, that the possession was changed, and that the husband intended to hold thereafter for the wife. M'Lean v. Longlands, 5 Yes. Jun. 71. Rich v. Cochell, 9 Yes. Jun. 369. Walter v. Hodge, 2 Swan. 97. Upon these cases it is plain, there is no sufficient evidence in this case to induce this Court to set up the gift against the husband.

The instrument purporting to be a deed to the son, was testamentary in its nature, and as the wife claimed under it, she cannot now claim against it.

Badger, with whom was Iredell, for the plaintiff. — There is no evidence to show, that this bill of sale was procured by unjust influence. Every thing proving misconduct on the part of the wife was posterior to the bill of sale. That was executed with deliberation. Every circumstance attending it is evidence of that fact. The formal execution of the instrument was equivalent to a delivery. Actual delivery is necessary only where other facts show nothing from which a delivery can be inferred. Calling upon the witnesses to attest the deed, was evidence sufficient to show every thing necessary to constitute a deed. Besides, the deed was produced by the wife, and the presumption of law is, that it was delivered to the wife, similar to the common case of a bond executed before a witness, and not then delivered, but afterwards produced by the obligee.

As to the misconduct of the wife, there is no rule of law to show that a subsequent misconduct of the wife will avoid a previous gift. This Court will not set itself up as a. forum to decide upon the conduct of husband and wife. It will not look at anything but the instrument.

Courts of equity do not look with suspicion upon gifts by the husband to the wife. All the cases upon the subject *61show this. It is, indeed, suspicious for .a widow to attempt to set up a gift by parol; this, however, only shows that the rule is as above stated. The Court only requires a distinct act of the husband to show his real intent of making a gift. A deed of gift is such a distinct act, and evidences unequivocally a design to transfer property to the wife. All the cases cited for the defendant were cases in which parol gifts were attempted to be set up. The general principle upon this subject is, that whenever a husband disposes of property for the use of his wife, it is for her separate use; and equity will always uphold such dispositions, when designed as a trust for the wife, although no trustee intervenes, and will declare it to be for her separate use. This deed intended to pass the property to the wife, and of consequence to her separate use, which this Court will 'carry into execution. The second instrument is charged with the same trust. It recognises the obligations of the first deed, and shows, that when the husband executed the last deed, he intended the first to take effect.

The second instrument is certainly not testamentary, both from its form and its substance, and consequently cannot conclude the wife from claiming under the first deed of gift.

Ruffin, Chief Justice.

The plaintiff seeks to set up the deed of the 10th of April, 1827, and also to have her dower in the real estate of her husband, and her distributive share in his personal estate, according to the trusts of the deeds of the 20th day of November, 1828. The defendants resist the first claim, upon the grounds' stated in the answers. But they submit to the second, and state that they have always been willing to account with the plaintiff, upon the footing of the latter deed, as it was originally drawn, or as it was modified and left by the husband at the time of his death. Accordingly, dower has been allotted to the plaintiff by an interlocutory decree in this cause, without resistance on the part of the defendants. The only dispute therefore, really existing between the parties, is upon the validity of the deed of the 10th of April, 1827.

*62Whether a gfftfrom a husband to wUl'be* aided in Quceref'

Butcer-tamly it will not be, unless she shows merits, and aelearin-thehusby band to tlUeaud*8 hold for her benefit.

That is a deed purporting to convey several slaves presently; from her husband to the plaintiff absolutely. It is insisted, that such a deed is valid in this Court as a complete disposition, not subject to the husband’s revocation ; and the Court is bound to protect the separate interests of the wife under it, as absolute rights, in the same manner and upon the same principle, that the rights of any other cestui qui trust, are enforced against a trustee.

The Court does not entertain that opinion. In England has ^een cei'tainly held, that a gift from the husband to the wife without the intervention of a trustee, may be made, under such circumstances as to render it valid in equity, and induce that Court to constitute the husband h'mseif the trustee. No case of that sort has occurred in this state; and perhaps the Court might not feel the obligation to encourage the obtaining such donations, or the creation of separate interests in the wife, subject to hen immediate and absolute control during the marriage, by an act between the husband and wife themselves, which is inoperative at law. But it is not necessary, nor do we mean to deny the proposition in this case. If the Court would in any case support such a transaction, we think the circumstances before us, are insufficient to raise any equity for the plaintiff.

As the contract is void at law, the case in this Court must always be that of an application to aid a defective m, -r , , . , conveyance. I he wite cannot have that assistance unless she shows herself to be meritorious; and shows further a . . clear intention, that what was done should have the effect divesting the interest of the husband, and of creating a separate estate for her, which she should have the immediate power to dispose of as she chose; and that the estate thus intended for her, was but a reasonable provision, Hence, although the doctrine that equity will recognise such transactions under circumstances, is laid down in the books, there are very few cases indeed, in which a gift by the wife to her husband, of her separate estate once well constituted, or a gift by the husband to the wife, have been made effectual. They almost all fail, either from the extravagance of the gift, or the insufficiency of the evi*63dence to establish the intents of an actual gift by what was done. It is plain, that a Court of equity, cannot by way of aiding a defective conveyance, carry it further than the parties intended it should operate, although its terms may be broader. In Walter v. Hodge, 2 Swans. 97, the wife set up a parol gift of six hundred pounds in bank notes by her husband in his last illness, accompanied with actual delivery. .It was insisted, that it was good either as a donatio causa mortis, or to her separate use. The case failed in the first aspect. As to the other, Sir Thomas Plumer said, there was great difficulty in establishing such a transaction, whereby the husband parts from his property in his lifetime, and puts it under the immediate control, and to the separate use of the wife. He calls it a suspicious case, and says, the Court requires satisfactory evidence of an act constituting a transfer of the property, and a sufficient transmutation of the possession. There was none such there; because the possession of the wife, was that of her husband. He ruled against the wife, because her answer stated the gift to be absolute and immediate, and her only witness proved it to be conditional and postponed to the husband’s death. In M‘Lean v. Longlands, 5 Ves. 1, Lord Alvanly said, that nothing less would do than some clear and distinct act of the husband, by which he divests himself of his property, and engages to hold as trustee for the separate use of the wife. Declarations of an intention, or of a disposition of property to the use of his family, if admitted, would be a sort of evidence, and upon a principle that would have a most extensive effect. Suppose, said the Court, that the husband had given to Callender, (who had the funds in his hands) distinct directions to pay to her and her separate use: does that vest it in her? Could she in this Court compel execution of such a trust ? The Court refused an issue to try the fact of the gift. In such cases as the gifts of trinkets, or the borrowing by the"husband of the wife’s savings of her pin money, the transactions are supported on the manifest intent. So, in what Sir Thomas Plumer calls “the single case,”of an actual transfer in the stock books of one thousand pounds South Sea annuities, by the *64husband to the wife, and in her name, the Court thought that so decisive an act, as amounted to an agreement by ^le hus^anc^’ that the property should become hers. It could not be mistaken. It was a clear and distinct act which he thought operated immediately, which he plainly intended should so operate, and divest him of the property. The two first cases, it is true, were transactions by parol; and in that respect, differ from that before the Court. But they are cited for the reasoning; and to show how reluctant the Court is, to extend this extraordinary assistance to any cases, where there is the shadow of a doubt of the intention ; or where it cannot be seen that the parties had done all that was intended to be done; and that they believed that sufficient had been done to effectuate their purpose, to change the character of the husband’s interest immediately. Such dealings are suspicious. It is not easy to admit into the mind, the belief of such an intention on the part of the husband, freely, actually and immediately to part from the property, and to vest it in the W’ife, she living with him, and comfortably provided for by him, and both contemplating that will continue to be the case. Why should he thus convey slaves to her, under those circumstances? It cannot be supposed in this case, that it was with a view of separating them from his own, and letting the profits accumulate for her. Nothing of the sort was in fact done. No such intention is stated in the bill; nor any reason given, for every thing’s remaining after the deed as it was before. It is not pretended, that the plaintiff set up any right to the slaves in her husband’s lifetime, nor indeed until long after his death, when the trustee had sold them for the purposes of division. The deed has this effect; it proves what was then in the husband’s mind; that is, that he thought of providing for his wife, and how far he would go, if he did it at all. If there had been a change of the possession of the slaves; if the plaintiff had exercised, or asserted any dominion over them; if the husband had even acknowledged her authority to do so, there might be something to show that he intended to divest himself of the property, and thought he had done so. If even there were clear evidence of the *65delivery of the deed to the plaintiff, or any person for her, there might be room for a presumption, that the husband was parting from the property, though the possession and perception of the profits continued as before. It is said, that the execution of the deed, and the subsequent production of it by the wife, is sufficient evidence of its having been perfected by delivery. And that even if the maker of a deed retain the possession until his death, after a formal execution, which was intended as a delivery, that will make it effectual. The cases on that subject relate to deeds effectual at law. If a father make a deed to advance an infant child, and formally execute it, and put it away in his desk for safe keeping, that will be his deed. It can operate at law between the parties, and there is a presumption from the nature of the transaction that it was intended it should. But the rule is otherwise between husband and wife. The deed from one to the other cannot operate; and there is no presumption that he means to give her a separate estate during his life. A father may wish to advance a child before marriage ; but a husband seldom wishes to put his wife on an independent footing; he may perhaps do so, but it requires clear proof. The bare and formal signing and sealing _a deed-to her and having it attested, cannot, in such a case, be taken for a delivery, or as having been intended for one. There must be proof of some further act; delivery in fact, or the production of a deed by the wife, with evidence at least, of such acts on her part in relation to the property, in his lifetime, as would induce the belief that she had the deed in his lifetime, and by hfe consent; this is the more necessary, as the intimate relation between the parties, and her means of access to his papers, afford opportunities to her, to possess herself of the instrument without his consent or knowledge! The ordinary presumptions therefore, do not reach such a case. But here the circumstances are very strong to rebut them, if they did. The deed was executed in April, 1827, and witnessed by Gedney, without any thing passing between the parties but the bare signature and attestation. The plaintiff-was not present, and the husband did not state the nature of the paper, but *66Iiept it himself. The bill charges, that he had frequently declared his intention to make such a deed, and that he executed it in the presence of two witnesses. The bill states the case, as if the deed had been attested by both witnesses at once, and immediately delivered to the plaintiff. The latter fact is not directly averred ; nor indeed is any delivery charged, except as implied in stating the execution of the deed. The bill is silent upon the delivery and possession of the deed or slaves. Sometime afterwards the husband, at some distance from home, produced the deed, and requested Mr. M'Intire to attest it, and he did so. He stated to the witness, that he always intended to do something for his wife, but did not wish his family to know it until after his death, and therefore desired him to keep it secret. The husband took the deed again. Nothing more is heard of it until July, 1832, when it was proved and registered; though the husband died in March, 1831, and the defendant James T. Elliott as his administrator and trustee, soon afterwards sold the estate, including the negroes conveyed in this deed, and the plaintiff was present at the sale and made no objection, but purchased two •of them. It might be possible, that she thought the deed ineffectual, and4 therefore did not assert a right under it. But why should she think so ? Would she not have taken advice on it ? Nothing of that sort is proved; nor does any witness prove its intermediate existence.

*65The pre-sumptionof a delivery which arises from theexecution and attestation of a deed valid at law, does not take place as to one by a husband to his wife; there must be proof of a delivery in fact, or of acts or declarations of the parties, from which it may be inferred.

*66It is clear, however’, from Mr. MTntire’s testimony, that the husband did not intend the deed to operate immediately. He did not intend the possession to change, but did intend everything to remain as it was until his death. Upon the deposition of this witness of the plaintiff, an immediate delivery of the instrument, which upon its face is to have an immediate operation, cannot be presumed, but such a presumption is disproved. That there was an actual delivery, the plaintiff ought to furnish clear evidence. She does not; but her depositions and the circumstances show, that a delivery was not intended, when the husband last spoke of the instrument, and that it was not made. Besides those already adduced, it is clear, that *67the parties united themselves, unfortunately, from motives of the most interested kind on her part, and that they lived unhappily together. Just two months after the deed is dated, and probably a few days after M‘Intire’s attestation, the plaintiff left, and her husband advertised her. If she had then been in possession of the deed, is it not probable she would have shown it to some person 1 After that period, there seems to have been little probability of his executing any kind intentions to her. On the contrary, she frequently left him after violent altercations, and carried off bed linen and other moveables; and, as charged by him, opened his desk and plundered him of money. In November, 1828, he executed the deed of trust, by which he conveyed all his estate, including the slaves mentioned in the deed to the wife, and making therein for her just the provision to which she was legally entitled. It is said however, that the interlineation subsequently made, whereby those slaves and two others, were assigned to the wife as her share, shows that the donor either considered or meant the deed of April, 1826, to be obligatory. That does not seem to be a just inference.' All that can be inferred is, that he wished her share to consist of those particular slaves; for certainly he did not intend that she should hold them under the one deed, and to take one equal share with his children of his other property, under the other. But it is certain that the provisions of the last deed are altogether inconsistent with the first, as now set up. Under the deed of April, the wife takes an immediate separate estate. That of November, subjects those negroes in common with the other estate, to the payment of the debts ; and the use for life in' the whole is reserved to the husband. These provisions show, that whatever else he may have intended by the interlineation, he could not intend thereby to confirm the first deed which conveys an immediate estate.

In a case therefore, where the Court expects satisfactory and clear evidence, that the deed was delivered, and that her husband meant to make thereby such a separate provision for her as the deed purports to create, that is immediate, and to make himself her trustee, instead of being *68the beneficial owner; the plaintiff, has not only not supplied the proof, but the evidence tends the other way toes*;ablish that he did not intend to part from the property y that the paper was merely deliberative; and that it never was delivered, but obtained at sometime surreptitiously by the plaintiff and kept concealed by her.

If the plaintiff had proved such a case as has been supposed, other difficulties of a very serious kind would be presented to her relief. A wife must have merits to make the Court active in her behalf. She is not like a purchaser for value. She must yield to creditors, and only stands before other volunteers ; and not before them, unless her conduct entitles her to the bounty of her husband. The aid of the Court is discretionary, under all the circumstances. In Stoit v. Ayloff, 1 Ch. Rep. 60, the plaintiff filed her bill on a promise of the husband, to settle one hundred pounds on her; but she had separated from her husband, and the bill was brought sixteen years after the promise, and was dismissed. In Beard v. Beard, 3 Atk. 72, the husband gave by deed, all his substance to his wife; Lord Hardwicke refused relief, because the law will not permit a man to convey to his wife, and equity will not suffer the wife to have the husband’s estate while he is living, because it is not in the nature of a provision, which is all she is entitled to. In England, the wife is dependent upon the husband’s good will for a provision, unless secured by contract. Here the law secures it to her, against his will.

But the clear ground is, that there is a defect of evidence of the actual intent, in respect of the deed and of its delivery by the husband. For that reason the bill must be dismissed, as far as it seeks relief upon the footing of the deed of April 10th, 1826.

Thé plaintiff is entitled to an account under the deed of November 20th, 1828, and the subsequent memorandum dated April 20th, 1829.. It might be a question, were it not for the latter memorandum, whether the interlineation of the words “ all to be to my wife,” in the schedule, after the execution of the deed, could control the provisions of the deed itself. Being a voluntary conveyance and settle*69ment on the family of the donor, and kept for the donor by his friend, subject to his order, and never delivered to the trustee until all the alterations had been made, perhaps it might be considered unfinished until then. But it is unnecessary to discuss the question, because, if the donor was at liberty to make the first. alteration, he could also make the second; and the last reinstates the provisions of the body of the instrument, adding only other property.

Pee Cueiam. Decree accordingly.