#### JONATHAN WORTH, *Adm’r, against*ALEXANDER GRAY *and others.*

The orders and decrees of a court of Equity, are not necessarily absolute, but may be moulded and shaped to meet the exigence of each particular case.

Where a bill was demurred to, which seemed to be deficient in equity, yet, as there were facts and circumstances incident to the matter disclosed, which would have an important bearing on the case, some of which were not set out at all, and others but vaguely, and the amount involved was large, the Court, without costs and without prejudice to the defendants equity, overruled the demurrer in order lhat the plaintiff’s bill might be amended.

*5Where a husband having a right to receive satisfaction for or release the equity of his wife, permitted a long time to elapse without bringing suit, during which time his adversary was in the open use of the property, claiming it as his own, it was *held*that a presumption of abandonment, release or satisfaction arose against the equity, which would be fatal, unless the delay was accounted for.

Whether ignorance of the claimant’s right is sufficient to repel the presumption arising from the lapse of time; *Quere?*

Whether where a bill by way of anticipation sets forth facts to repel the presumption of satisfaction, release or abandonment, which avers that in fact there was none, and the defendant pleads the statute of presumptions, it is necessary to support such plea by an answer to the plaintiff’s allegations;— *Quere?*

Cause transmitted from the Court of Equity of Eandolph «ounty.

The bill alleges that on the 13th of August, 1809, in contemplation of a marriage, then about to be solemnized between the defendant, Alexander Gray, and Nancy Parke, widow, articles of agreement, of three parts, were made and entered into between the said Alexander Gray and the said Nancy Parke, and one Solomon K. Goodman therein named, as trustee, the material portion of which is as follows:

“ That whereas, a marriage is shortly intended to be so-lemnised between the said Alexander Gray and Nancy Parke, with whom the said Alexander Gray is to have and receive all such propert}T, both real and personal, as the said Nancy is now possessed of or may hereafter be possesed of in consequence of any lawsuit which now is, or hereafter may be brought for the recovery of any moneys or property to which she is entitled : it is therefore, covenanted and agreed between the said parties to these presents, in manner and form following: First, that the said Alexander Gray, for himself, his heirs, executors or administrators, doth covenant and agree with the said Nancy Parke and Solomon K. Goodman, their heirs and assigns, that tliev, the said Alexander Gray and Nancy Parke, his intended wife, in case the intended marriage be solemn-ised, by some good and sufficient conveyance in law, shall settle and assure all such property, whether real or personal, *6whereof she, the said Nancy is seized as aforesaid, to the use and behoof of her, the said Nancy, and her friend and agent, Solomon K. Goodman, for her use and benefit during her natural life, and the said Alexander Gray, doth, by these presents, covenant and agree, that Solomon K. Goodman, the agent or trustee aforesaid, shall have full power and authority, by the advice and counsel of the said Nancy, to prevent the said property from being sold or wasted, and doth further covenant and agree that the said Nancy Parke, his intended wife, shall have full power and authority over the said property, and may, at any time, give or convey any part of the same to her relations, and shall have full power by these presents, by will or otherwise, to dispose of the whole of the same to her friends and relations at her death: Provided, nevertheless, that if the said Nancy shall have children by the said Alexander Gray, she shall not dispose of the said property so as materially to injure them; and in case the said Alexander Gray shall first die, it is on his part, by these presents, covenanted and agreed that the said Nancy, his intended wife, shall hold- by herself and the authority of her said agent, all such real or personal property as she now is entitled to, and in case the said Alexander Gray should depart intestate, that the said Nancy shall, in addition to her own estate, have, hold, possess and enjoy a distributive share of him, the said Alexander Gray.”

That the whole of these articles are in the hand-writing of Gen. Gray, except the signature of Mrs. Gray and the trustee, and one Ilonry Burrow, the subscribing witness; that Goodman was the brother-in-law of Mrs. Gray, and Burrow, the witness, her brother; that said Goodman retained the said marriage articles in his possession until he removed to the State of Tennessee about thirty years ago, when he committed them to the safe keeping of one Kennedy, who after holding them for many years transmitted them to Stephen Moore, who delivered them to the plaintiff, who caused them to be duly proved and registered in the county of Randolph.

That the said intended marriage was solemnised, and in the *7year 1810, a child was born of the marriage, to wit, Mary, who, subsequently, at about the age of twenty, was married to the said Stephen Moore, of Hillsborough; that in 1852 or 3, she, with her husband, removed to the State of Arkansas, and there died, and at May, Term, 1860, of Randolph county court, the plaintiff, Worth, took out letters of administration on her estate.

That General Gray never made any deed or assurance as stipulated in the marriage articles, and that his wife, the said Nancy, died in 1818 or 19, without making- any will, and without ever having disposed of any of the property owned by her at her marriage ; that General Gray married a second wife some five years afterwards, by whom he had several children, whose names are set out in the bill, and who are made defendants. The bill sets out the nature and quality of the property owned by the said Nancy, and which he was posses-ed of by virtue of his marriage, and the articles aforesaid, consisting of land and a large number of valuable slaves; that Moore and his wife sold to Gray the reversion in the land after the expiration of his life-estate. The plaintiff, by his bill, insists that the effect of these articles was to limit the use and benefit of the property to the said Alexander Gray, during the joint lives of him and his wife, and after the death of the latter, then to their daughter, the said Mary, absolutely, and that at any time after the birth of the said Mary, she (the mother) might have insisted on conveyances to that effect, saving the power of a disposition to a moderate amount in favor of her friends and relations during her, (the mother’s) life, and that the plaintiff, as the administrator of the said Mary, is entitled to an aecount of all the personal estate upon that basis.

The bill sets out that the personal property aforesaid was taken into possession by the said Gray, and ever since has been treated, used and enjoyed as his own absolute property, or has been disposed of for his own benefit; that of the slaves, several were given to his children, who are made defendants, and are called on to account for the same; that within a year or *8two before filing the bill the said Stephen Moore called his attention to the said marriage articles; he seemed to have forgotten them, and at first denied their existence, but when produced, he admitted their genuineness, and stated that it had always been his intention that the property of Mary’s mother should be given to her (Mary) and her children; and at one time it was agreed between the said Moore and the said Gray, that the matter should be referred to the arbitrament of counsel, or to compromise the same themselves; but on the next day Gray expressed a desire that the matter *might*be settled by a bill in equity, and refused to account in any oth■er manner.

The prayer of the bill is for an account of the slaves and their hires and profits.

The defendants demurred; there was a joinder in demurrer ; and the cause being set down for argument, was sent to this Court.

Graham, for the plaintiff.

Fowls, *Morehead*and Kittrell, for the defendants.

PeaRSON, O. J.

The demurrer raises two questions:

1. The construction of the marriage articles.

2. The effect of the lapse of time during which the defendant Gray has been in possession, enjoying the property as absolute owner, and the presumption of a satisfaction or abandonment of the equity.

Our opinion inclines with the defendants on both of these questions; but, as the amount involved is very large, and the Court is not, by the bill, as now framed, put in possession of all the facts and circumstances which are relevant and may have an important bearing on its decision, we will avail ourselves of the fact, that the orders and decrees of this Court are not necessarily *absolute*like a judgment in a court of law, but may be “ moulded and shaped to meet the exigence of each particular case,” and order the demurrer to be overruled without allowing costs, and without prejudice to the equity or *9defense of the defendants which may be set up by plea or answer as they shall be advised, for the purpose of giving the plaintiff an opportunity of amending the bill by making further allegations, and the defendants an opportunity to rely on the presumption of satisfaction, release or abandonment of the equity by plea, (if so advised) and of afterwards setting out all of the facts and circumstances relevant to the question by averment in their answer, should the plea be overruled.

1. The plaintiff alleges that by the proper construction of the marriage articles, the legal effect is to give an estate to the wife for life in all of the estate belonging to her before the marriage, with full power to dispose of it by giving it to her relations or friends, unless there .should be issue of the marriage ; in which event, the intention was to vest the ulterior interest after the life-estate, in such child or children, and be insists that although this intention of making a limitation over in favor of any child or children that might be born of the marriage is not expressed in the articles, it will be implied by the Court from the nature of the relation which the parties had in contemplation, which furnishes the natural and ordinary presumption that the intention is to provide, as well for the issue of the marriage as for the wife, and relies on the fact that this is an executory, as distinguished from an executed trust, where greater latitude of construction is allowed, in order to give effect to the apparent intention of the parties, and the Court is not bound by the use or omission of technical words.

On the part of the defendants, it is insisted that the only purpose of the parties, in making the marriage articles, was to give to Mi's. -Gray power to dispose of the estate which she owned before the marriage, by giving it to her relations and friends, with a restriction upon the power, in case she should have children, and that no limitation was intended to he made and none in fact was made, so as to vest in them an estate after her death; for, if she died first, the husband, it was presumed, would be able to provide for the children, and if he died first, they would be amply provided for out of his estate, and out of the estate winch was secured to her. In aid of *10this construction, it was urged that the subsequent acts of the parties were in conformity thereto ; for, after the birth of a child, and the death of his wife, General Gray treated the marriage articles as having no further force or effect, and used and disposed of the property as if absolutely his own, and Moore and wife so acted in respect to the land, by selling him the reversion after his life-estate ; whereas, if the articles liad been in force, according to the construction contended for by the plaintiff, he was not entitled to an estate for life as tenant by the curtesy, and Mrs. Moore was entitled to the whole estate, and not simply to a reversion.

It is manifest that the condition of the parties, and the state of things at the date of the marriage, may have an important bearing upon this question of construction, and the Court should be put in possession of all the facts: was General Gray an improvident, thriftless or dissipated man ? — a man of no property, and “afortune hunter,” who was not likely to be able to take care of his children ? Or was he a prudent business man, with property of his own, and one who could reasonably be confided in to take care of his children, if he should have any ? What was the age of Mrs. Parke at the date of her contemplated second marriage? How long had she been married to her first husband without having borne a child? Had she any destitute relatives for whom she supposed herself under an obligation to provide?

These facts have an important bearing as tending to distinguish the case from that of two young people just starting in life, with wh^m the first and uppermost idea on their marriage is to make a provision for children ; whereas, in this case, judging by the face of the articles, the most prominent idea was to give the wife power, notwithstanding her marriage, to provide for “ her kin-folks.”

2. As Moore had power to receive and accept satisfaction for, or release his wife’s equity, a presumption arises from the lapse of time during which the defendant Gray had possession gnd used the property as his, even according to the case of *Gotten*v. Davis, 2 Jones Eq. 430, unless the defendants are *11able to account for the delay, or to repel the presumption. It was said on the argument that Moore, the husband of plaintiff’s intestate was not informed of the existence of the marriage articles, and of the estate which had vested in her by-force thereof until within less than two years before the bill was filed. This fact is not distinctly alleged in the bill, and our purpose in not disposing of the case definitely at this stage, is to give the plaintiff an opportunity to amend his bill, and aver the fact distinctly, if it is so, and present the question whether ignorance of the right will prevent the presumption.

It was also said, on the argument, that the admissions of General Gray7, when a demand was made and his attention was called to the existence of the marriage articles, and particularly his offer to refer the matter to the arbitration of mutual friends is sufficient to repel the presumption. These matters are not set out in the bill-with the degree of certainty7 necessary to give to the demurrer the effect of a positive admis-; sion which would repel the presumption; and the demurrer is overruled for the purpose of removing all difficulty in this respect. The plaintiff may7 amend his bill and charge these matters with certainty7 by way of anticipating the plea of the defendants, (if they are so advised) setting out the fact of the long enjoyment and possession of the property, and relying on the presumption of a release, or satisfaction or abandonment, which the law makes therefrom.

Whither the defendants will be required to answer, in support of this plea, an allegation in the bill charging that there has been no satisfaction and no release, will be an interesting question in regard to which we intimate no- opinion. The statute, and the rule of the common law, obviously give to-the lapse of time a technical effect over and beyond that of a mere circumstance, as upon an enquiry in regard to an open question of fact. Whether it is consistent witli the policy of this rule to require a party to make admissions as to the matter of fact which will defeat his plea, is a question we leave for future consideration.

Per Curiam, Demurrer overruled without costs, and without prejudice.