#### Tyson & Sugg v. Tyson, adm'r of Moab Rountree, Williams, guardian of P. Williams, and Nobles, guardian of B. Rountree.

From Pitt.

marriage settlement very informally drawn, the Court will loot, for the true intent of the parties; and, as in this case, it appeared that personal property which belonged to the wife, and was in her possession, was, by the agreement, in contemplation of mar- riage, vested in trustees to the use of the husband for life, and after Ms death, to the use of the wife and her heirs, and to no other uses, the Court, notwithstanding the language used, viewed the settle- ment as in restraint of the marital rights. The husband is neither heir, or nest of kin to his wife: he answers not the description used, heir of the -wife ; for though, in determining- the quantity of an estate, the word heirs would be received as a word of expansion or limita- tion, and the same force allowed it, as if the words executors anti administrators had been used, yet in arriving at the intent, the Court will consider the common meaning of the word heir, though it be a technical word ; and as here it was not used technically, because 1 applied to personalty, it shall be taken to mean blood relations, on whom the law casts the inheritance on the death of the ancestor, and is the same- with next of kin. This was

a bill setting forth that Susanna, the widow of one Richard Williams, having by her said husband, a Tyson, adm'r *473iiiiti, I*. N'iliiaias, and being possessed of considepablc estate,, and about to form a matrimonia! connexion with one Moab .Rountree, in contemplation thereof, entered, into a written contract with said Moab &ounim), by which she conveyed certain jiropwiy to the Complain • anto, in the foil»)wing words, vi/.:

"This indenture tripari.i1e, made this 3 8ih day of Karch, ip. the jear J813, between losb Rountree, of the first part, and Alien Tyson and peter Pugg, of the, second part, am! Susanna Vt illiams, of the third part, wilnesseth, That the said Moab Rountree, for rod in eoiirirleris-fion of a marriage intended, by God’s permission, shortly iobe had and solemnized between the said Moab Rountree, and. the said Susanna I’vifliiuas; and whe-eas, the said Susanna Williams v¡ pon sowed, of divers negroes, to-wit, (naming them,) and that a competes! jointure may be had, made and provided, for ilie said Susanna ilharn:;, in o ra-die said marriage shall tala' eifect, and for aettling and assigning o1 the neg'voeti, S Irbies, 4 beds and bedsteads, and furniture, one dozen chairs, 4 loot¡ng-giasses, 19 silver spoons, herein before menfi'-ne.d, to and upon the severs! uses, interest;; and; purposes, herein at 'r '."Cii tioned, and declared pursuant to the agreement re do upon die eon-tract of the said intended marriage, he, th.e said Moab Rountree, halla granted, aliened, released and confirmed, snj by these presents doth grant, alien, and confirm unto the said Alien Tyson and Peter Sugg, and their heirs, all and singular the ik groes, 20 head of cattle, live horses before named, and also the reversion and reversions, remainder and remainders, and alt the estate of him, the said Slosh itountivc, of in, and to the same premises, and of, in, am! to every part, rod parco! thereof, with the appurtenances, to ba'-c and to hold, nil and singular, the negroes, unto the said Alien Tyson and Peter Sugg, their heirs and assigns, to and for the several uses, interests, trusts and purposes, herein after mentioned, limited, expressed and declared, that is to say — to the use and behoof of the said .Moab Rountree and iris herir;, antil the marriage between him the said Moab JJountree, and hie intended wife, shall be had and solemnized; and from and after the Doletnnfoiition thereof, to the use arel behoof of the said Moab Roun-tree, for and during the term of Iris natural life, without impeachpieiii of waste; and from aud after the determination of that estate, by for-fcilure, or otherwise, to the use and behoof of the said Allen Tyson and Peter Sugg, and their heirs, for and during the natural life of the naid Moab Rountree, lo preserve and support the contingent remainders herein after limited, from being defeated and destroyed, and, for that purpose, to make entries and bring actions, as the case shall require: yet, nevertheless, in trust, to penult and suffer the ¡rúd Tfeeb *474Rountree to receive and take the rents, issues and profits thereof, to his and their proper use and benefit, during1 his natural life ; and from and after the decease of the said Moab Rountree, to the use and be-of Susanna Williams, intended wife of the said Moab Rountree, his heirs and assigns forever, and to and for no other usej intent, or purpose, whatsoever. In witness whereof, Sec.

The contemplated marriage took place, and one child, B. Rountree, was the issue thereof: Susanna Rountree died, leaving her husband, Moab Rountree, the child by her first husband, Williams, to wit, P. Williams, and B. Rountree, her child by her last husband surviving her: Moab Rountree died soon after, leaving the children surviving him. Administration on his estate was granted to the Defendant, Tyson ; and the Defendants, Williams and Nobles, were appointed guardians to the children respectively. Administration on the estate of Susanna Rountree, was granted to Moses Tyson, the younger.

The bill, after reciting these facts, proceeded to state that most, if not all, of the property conveyed by the deed above, having been acquired by Susanna Rountree, under the will of her former husband, Williams, a considerable part thereof was received on behalf of P. Williams, who was born after the making of her father’s will, other parts were disposed of by Rountree, after his marriage; but as to the residue in the hands of Complainants, they knew not how to dispose of it, because, for want of technical precision in the deed, they were unable to ascertain who were the beneficial owners thereof. It was severally claimed on behalf of P. Williams, B. Rountree, and by the administrator of Moab Rountree. The bill prayed that these parties might be made Defendants, and litigate ftmong themselves the several questions arising on the deed.

*475Meal* Rountree’s administrator insisted in his answer, that the intention of the parties was as expressed in the deed, and that the conveyance of the property in trust for the said Susanna and her heirs, vested the same absolutely in her husband, the said Rountree.

Gaston, for the guardians of the children.

The Court will endeavour to give to the instrument such a construction as will do justice, and effectuate the intent of the parties. To aid in the construction, examine the situation of affairs. The woman was a widow, with one child, sole owner of the property which was' personal, and which, without a settlement, would become absolutely his on the marriage. The object, of the settlement, though not very definitely expressed, seems to have been for her benefit, to secure her jointure, and to the deed we most look for all the dispositions of the property which were intended. The interests which it was designed he should have, are specially expressed. There seems to have been a floating suspicion, undefined indeed, that Rountree would, in some way or other, defeat the design of the parties $ that possibly he might injure some individual, who could not claim during his life, and therefore, the clumsy insertion of trustees to support contingent remainders. All the estate besides is in trust for her and her personal representatives.

The legal estate is in trustees — the husband’s representatives cannot get it hut through the intervention of a Coart of Equity; and will such a Court give it to them in defiance of what the parties intended ?

The word heirs, as used in tills instrument, and applied to personalty, carmot mean heirs technically, for in personalty we do not speak of hdrs ; it must mean “ next of kin or personal representatives.”^--(5 Ves. jun. 399.) The husband is not next of kin — docs not take as such ; he claims solely jure (3 Ves. 246) and here the jus mariti is barred or intended to be barred. Nest of *476bin and personal representatives have been held not to 2ne'aii the husband — (BaMey v. Wright, IS Ves.jun. 49— Vide also Lamgham v. Menmj, 3 Ves. 48/.)

Great latitude is allowed Coarts in construing instruments of this kind to accomplish the intent of the pa» ties — -( Woodcock v. Duke of Dorset, 3 Uro. Oh. Hep. 569— A Bnnvn,"{)i — 3 Jes. & Beame, 79.)

Mordecai, for the administrator of the husband

’The deed conveys an estate to the trustees, to. the use of the husband for life, remainder to the wife, her heirs and assigns.

The wife by this, took a vested interest in this equitable estate. Upon her death, this interest devolves upon her administrator, and the question is to whom he shall account;

The husband by the intermarriage acquires an interest in all the estate of his wife; which interest is either absolute or qualified, .according to the nature of the estate. In her real estate he acquires a freehold. In her chattels real, an entire interest, in the event of sur-vivorship, together with a right of absolute disposition. In her dioses in action, a right, in case of survivorship, to receive as administrator, and to retain as husband, together with a power to dispose of them for a valuable consideration, and so to bar the wife surviving him, and in her chattels in possession an absolute ownership j and so entire is the transfer which the law makes, that creditors of the wife may be thereby defeated-of their debts.

There is a perfect analogy between the interest which the husband takes in the legal and in the trust estates belonging to the wife. He shall be tenant by the curte-sy of a. trust of real estate. Her trust in a term he may assign without consideration, and bar the wife surviving him, because he might have done so with a term of which she had the legal estate. Her equitable interests' in the nature of dioses, he may transfer for a valuable *477¿bnshleration, so as to bar her Ja case she should sur-live him; hut without a valuable consideration she would not be barred: because as to her legal choses, he cannot transfer such title to the assignee as would enable hita to recover in a Court of Law, and Equity follows the rule as to her equitable choses. And although a Chan» seller once said, that if the law was, that a husband who received an estate with his wife should not be answerable to her creditors, whose demands were unpaid at her death, he would alter it, yet the law remains as before staged, aud the creditor of the deceased wife can have no more relief in Equity than in Law — (2 Jltkyns, 107, 417 — 1 Bro. Ch. 44 — 3 P. Wins. 196 — 3 Ves. 401 — .9. Ves. 676.)

I have premised this, for the purpose of shewing that there was nothing in the circumstance of its being a trust estate, which should therefore defeat the husband’s rigid.

Is there any thing in the nature of the conveyance, which shall rebut the husband’s title ?

By the marriage, the husband acquires an interest in the entire estate of the wife. If any agreement is entered into, his marital rights will be altered so far as that agreement may impair them, but whore that is silent, they remain pro ianlo, as if no agreement had been made. It is a mistake to say, thatyviien a contract is made upon marriage, the husband onIJ*t#kes what is given him by it He takes that and every thing dse which is undisposed ol", and which he can take without violating the stipulations expressed. The marriage gives him his rights; the contract may abridge those rights — -so far as by the contract he parts with them, he loses them; what he does not part with, remains his — (1 Ves.jr. 49-~TaJbb v. Jlrcher.-1 Hen. & Mum. 399.)

J admit, that if there be any express stipulation in the contact, or any which must be necessarily inferred from, what is expressed, which would be defeated by giving the estate to the husband, such construction should he *478made as will support the contract. But liow will the contract, as expressed, or what is necessarily to he deduced from what is expressed, be defeated by sustaining his claim.

The views of the parties are to be ascertained from their declarations : we are not at liberty to indulge in fanciful conjectures. The object is declared to be, to secure to the woman a jointure : by which is understood, an estate to be enjoyed by her, in case she survived her husband. Not a word is said of providing for her child j that deed is stated to be pursuant to an agreement made upon the marriage. What then is the substance of it ? That instead of Rountree having an entire estate by the marriage, it should be so conveyed that his intended wife should have it after his death, in case she should then be living to enjoy it. It does not appear that any thought was taken of her child, and a reason appears by the bill, the child already had double the estate of the mother.

Giving tiie whole to the husband, does not defeat one particle of the intention of the parties as they have declared them. There are no words to wrestle with and manage — none can have any right bat the husband, unless some provisions are interpolated.

I have said in the commencement of this case, that tiie question is, to whom shall the administrator of Mr. Rountree account ? For I take ii»tp be clear that the trustees are to account to her adfelimistraior.

The limitation is to Lvr, her heirs and assifmf and cases have been cited to shew, that heirs, whoa applied to personal estate, means next of kin or personal representative. Be it so. It is equally clear that they are not used here by way of indicating who is to take, the estate as a purchaser, but are mere words of limitation, annexed to the asíate of tiie woman. Suppose there are debts due from t! ie estate of Mrs. Rountree, could not the creditors call upon her administrator to be satisfied out of this estate, or would the Court say, she took nothing, but her nex t of kin took as purchasers.

*479The case of Wait v. Wail, (3 Fes. 244) cited on the other side, is not applicable. There the trust was not to the wife, but to the next of kin of the wife. To make that case an authority here, the word heirs, must be made a word of purchase. 2d. It must be declared to mean next of kin, and next of kin must be declared' not ,l<> mean husband.

The case of Langham v. Menny, cited in 3 Ves. 468, only shews, that 'where the wife’s estate is conveyed to trustees, and remains there during the coverture, it will belong to the wife surviving — (18 Ves. 49 — Bailey v. Wright.') In case she should die before her husband, and without appointing, then ia trust for her next of kin or personal representative. There the limitation was not to the wife, as in this case, but to her next of kin as purchasers.

But if heir were a word of purchase here, Í know of no authority that would exclude the husband. Ikir, when applied to persona* estate, musí mean the person appointed by law to succeed to the estate. JSkxt of kin, means blood relations, in the a tat. of Wen. VIII, which was printed in Latin, the words were proximo de sanguine, which have been translated next of kin. The husband who does not fail within the latter description, does within the former % and in the case hi 18 Ves. he might have been dee! uatcd as personal representative, liad it, not been that Tit description wan controlled by the accompanying words.

Henderson, Judge.

This case is not clear of doubts. I can find not one like it. On the one hand, it is plain I, distinguishable from that class of cases where, alter the determination of the marriage, part is given to the husband : there the Huhand is very plainly excluded, because lie cannot take pm l by express words, and the. "whole fey construction. It is also unlike that class, where the wife takes, provisionally, for the same reason,, For the salce of brevity, with this dess l arrange those *480cases where the wife may exercise a power. Nor is it like those cases where the next of kin take as purchasers, after an estate for life in the wife •, for the hus-i)an(] is not next of kin to the wife, for all his claims under the law are jure mariti. The cases cited at the bar, (1 and 3 Vesey, jr. and Hen. & Mum. and 3 Mum.) are illustrative of these principles 5 and although there are some strong expressions in some of them, such as that the husband takes all but what, by contract, he gives away, yet they are either to be understood in reference to the subject matter, or they were extra-judicial. It is also unlike those cases where, the husband’s property, or partly his, and partly his wife’s, is settled on the wife for jointure ; for there, the design of the settlement is to confer rights, not as in this case, to abridge them. In this case property, which was the wife’s, and in her possession, and which, on the marriage, would have vested absolutely in the husband, is, by an agreement, made m contemplation of marriage, and solely in relation to the wife’s property, (for it does not appear that the husband had any) vested in trustees to the use of the husband for life, and after his death, to the use of the wife and her heirs, and to no other uses.

I cannot but view this settlement as in restraint of the marital rights throughout both limitations, that his rights as husband, which, upon the marriage, would have given him an absolute estate in the property, are, by the agreement, cut down to a life estate : yet the reasons for this opinion are not of that strong and conclusive kind, which I should wish to govern my judicial acts, yet they are much stronger than any that occur on the other side. The property belonged to the wife. The intent and design of the settlement were to restrain the rights of the husband, and the words used were proper to those ends ; if his rights are extended to an absolute interest, his rights will be concurrent, (a thing, I presume, not designed,) for he does not pretend to claim, but only in the event of his wife’s dying before him* — his rights up - *481dcr the settlement continue during his lifts. He is neither heir or next of kin of the wife, and answers not to the desnipfion, or if you will, expression, heir of the wife; for although in determining the quantity of estate, we must take the word heirs as a word of expansion, or limitation, and allow it the same force, as if the words executors and administrators had been used, yet its arriving at the intent, we may take hold of the meaning of the word heir, although it be a technical word ; for here it evidently is not used technically, for they are speaking of personal property — -here the word heir means blood relation, on whom the law casts the inheritance, on the death of the ancestor, (and is taken here as next of kin,) and anciently, when lands were not alienable, the heir took by succession 5 and when, afterwards, lands became alienable, whereby the whole estate became vested in the ancestors, and the heir, by necessity, took by represen* tallón, the meaning of the word heir was not thereby changed — it still means next of blood, on whom the law casts the inheritance, on the death of the ancestor. The eircuitous asid complex mode in which the intention is expressed, if it is In favour of the husband, furnishes an argument against so construing it: for if such had been the intent, the mode of expressing it would have been so obvious, plain and simple, it would have been resorted to, to wit, to the use of the husband absolutely, if the wife did not survive him, but if she did, to her absolutely $ for this is, in substance, the only effect which the husband contends is produced by this long settlement; and |f the intent, be as the wife alleges, that intent is expressed in a plain, short, and direct manner, perhaps the most appropriate that could be used 5 only subsitute the words next of kin for heirs: nor does it weaken, but rather strengthen this exposition, that the drawer was an ignorant man ; for that would have led to an attempt to have expressed the intent directly, however awkwardly he might have executed itand lastly, that the trustees were to hold upon the trust expressed a the deed, and m *482other. Upon the whole, I think the whole scope and de» sign of the marriage settlement was, to bind and reduce the rights of the husband, of every description, to those given ¡rim jn the deed, to wit, a life estate.

Tayxoe, Chief-Justice, and IIaxx, Judge, concurred.