#### HANNAH GEE *v.*HENRY GEE and PEYTON R. TUNSTALL.

A marriage aettiement which directs the trustee, in the event of the wife dying ■without issue of the marriage before her husband, to transfer to him all her property excepting her land and slaves, and to convey them as she should appoint; in the event of the wife’s surviving the husband, there being no issue of the marriage, *held*upon the recital and other parts of it, to create a trust of the land and slaves for her sole and separate use.

Gaston, Judge. The main purpose of this bill was to reform a marriage settlement entered into between the plaintiff and her deceased husband James Gee. — This settlement was executed on the 24th February, 1824, between the said James Gee of the first part, the plaintiff then Hannah Norfleet, widow and relict of Marmaduke Norfleet of the second part, and the defendant Peyton R. Tunstall of the third part. —It recited that a marriage was in contemplation between the parties of the first and second part; that the plaintiff was seized and possessed of a considerable estate, *consisting*of lands, slaves, stocks 'of different kinds, crops, household furniture and plantation implements ; that it had been agreed that the said James, after the said marriage, should receive and enjoy during the lives of them, the said James and his intended wife,the interest and occupation of the said real and personal estate, and that the same and the interest' and profits thereof, from and after the decease of such of them, the said James and Hannah, as should first happen to *104die, should be had and enjoyed by the said Hannah if she should survive him, and after her death by any issue which might be of the intended marriage, and that the land and slaves, and the profits thereof after the death of the saj(j james ancj Hannah, or whichever of them should first happen to die, in case there should be no issue of the intended marriage, should be at the sole disposal of the said Hannah notwithstanding her coverture ; and then proceeded to convey in proper mode and by apt terms unto the said Peytpn R. Tunstall, all the said lands, slaves, stocks of different kinds, crops, household furniture and plantation implements upon trust after marriage, to permit the said James during the joint lives of himself and his intended wife, to take and enjoy the interest and profits of the property thereby assigned, for his own use and benefit, and from and after the decease of such of them, the said James and Hannah, as should first die, in trust, if there should be issue of the said marriage, to permit the said Hannah, if she survive the said James, to receive and enjoy all the interest and profits of the said assigned property during her natural life, and upon the death of the said Hannah, to transfer all the said property to such issue ; but in case the said Hannah should die before the said James, leaving no issue of .the intended marriage, upon trust to transfer to the said James all the property thereby assigned except the land and slaves, and to transfer the said land and slaves unto such person as the said Hannah should by instrument in writing in the nature of a deed or will, limit and appoint, to the intent that the said lands and slaves might not be at the disposal, or subject to the control or debts of the said James; and in default .of issue of the intended marriage, and of such limitation or appointment in relation to the said lands and slaves, to the heirs at law of the said Hannah. The contemplated 'marriage took place on the day of the execution of the settlement, and in April, 1834, the said James Gee died intestate, and administration of his effects was duly granted unto the defendant Henry Gee. The widow on the 14th March, 1835, filed this bill against Henry Gee and Peyton R. Tunstall the trustee.— The bill charged that there was an error in the marriage settlement in this, that by the agreement made between her *105and her late husband previous to their marriage, all the property of every description then belonging to her was to be conveyed to the said Tunstall upon the trusts deduced in the said settlement; that her said late husband undertook to have the settlement prepared, and caused it to be drafted by a legal gentleman in the State of Virginia, where he, the said James, then resided ; that it was presented to, and executed by her under the representation that it conformed to the said agreement, but that either through the fraud or negligence of her husband, or mistake of the draftsman, the settlement omitted to convey to the trustee, and secure to the trusts agreed upon, the money, stock and furniture then be-' longing to the plaintiff-, and the debts due to her, and securities for money then in her possession. The bill then charged that after the marriage, her husband received from the administrator of the plaintiff’s first husband the sum of #12,330 62 in part payment of her distributive share of such intestate’s estate ; that he further received, under an order made on a petition for division of the slaves that were of said intestate’s estate, a large number of negroes as the plaintiff’s share ; that afterwards upon an arbitrament made of sundry matters of dispute between the persons entitled to distrifctution of said intestate’s estate, it was awarded that her said husband had received more than the just amount of the plaintiff’s share therein by the sum of #2910, and that in payment of said excess he should convey to David Clark, the husband of one of the next kin of said intestate eleven of the negroes so received by him as the plaintiff’s distributive share; and that her husband afterwards re-purchased from said Clark, one of the said negroes by the name of Jim ; that he afterwards disposed of the said Jim, and then purchased two negroes, Charles and Doll, with the money of the plaintiff paid unto him by the administrator of her former husband, intending that they should be substituted in lieu of Jim, and that at a sale made by the administrator of her first husband of the perishable estate of his intestate, her late husband purchased stock and furniture, to a seventh part whereof she was entitled. The bill prayed that the marriage settlement might be reformed and a trust declared for her in regard to all *106the property of whatever nature or description which came to her late husband upon his intermarriage, and the plaintiff declared a creditor of her husband as to the said sum of #12,330 62, and if the said settlement should not be reform-ecj, sjle ^0 declared entitled to compensation for the negroes surrendered to David Clark, and their issue, to the ne-groes purchased by her late husband with her money, and to compensation for her one-seventh part of the stock and furniture purchased by her late husband at the administrator’s sale.

The defendant, Henry Gee, answered the bill, admitted that he was the administrator of the late James Gee, and referred for the state of the assets which had come to his hands to the inventory and account of sales which he had returned to Court. The answer denied that there was any fraud or mistake in the drafting or execution of the marriage settlement, and insisted that it was perfectly understood before the marriage, and part of the agreement between his intestate and the plaintiff', that he should become entitled as husband to all the moneys due and owing to the plaintiff, which the intestate might receive, or reduce into his possession. With respect to the slaves which the bill *charged*that the defendant’s intestate conveyed to David Clark, the defendant denied that the plaintiff *has*any just claim for compensation. He stated that Marmaduke Norfleet, the first husband of the plaintiff, left him surviving his said widow and five children, and also left a will, and Peyton R. Tun-stall was duly appointed his administrator with the will annexed ; that the slaves belonging to the estate remained undivided, some of them being hired out by the administrator, and the others working on the plantation of their late master, under the superintendence of the administrator, and that the said administrator kept possession of all the other personal property of the said Norfleet, until after the intermarriage of the defendant’s intestate with the plaintiff ; that after the intermarriage a division was made of the slaves which were of the said Norfleet’s estate into five equal shares, of which one was allotted to the defendant’s intestate in right of his wife, amounting according to valuation to the sum of #7320 20; that after the marriage a sale *107was made by the administrator of the perishable property of his testator, at which sale the defendant’s intestate purchased a large amount of stock of various kinds, plantation utensils, furniture,-&c., and that he never got into possession or en-joyed any stock, plantation utensils, or furniture whatever, which were her property; that several suits having been instituted between the persons interested in the said Norfleet’s estate, the entire settlement of the estate was referred to arbitration; that the arbitrators awarded that the defendant’s intestate, in right of his wife, was entitled to receive but one seventh instead of one-fifth of the slaves, and had received an excess on account thereof; that the said intestate had received from the administrator of Marmaduke Norfleet more than his wife’s share of the value of the perishable estate of the said Marmaduke, and was indebted to the estate "in two sums, because of the use of the slaves, and of the money of the estate by his wife before his marriage, making ■altogether a debt against him of $4117 43 ; and thereupon they further awarded that the' intestate should pay to Wil-don Edwards, in right of his wife Lucy, $1207 29, and deliver over to David Clark eleven of the slaves he had received under the former erroneous allotments, amounting in value to $2910, > The defendant insisted that as to so much of the value of the said slaves thus transferred to David Clark, as corrected the error in the former allotment, the plaintiff could have no claim against her husband’s estate, and that as to the residue, he has a just, counter claim by reason of *her*debts contracted before the marriage, so paid off by these' negroes. He also insisted that the plaintiff consented that these debts should thús be paid off, and therefore could not on that account claim compensation.

The defendant further stated that a crop was partially planted by his intestate, on the lands of the plaintiff, which was subsequently made by the labor of the slaves of the plaintiff, and of his intestate, and had been wholly received by the plaintiff; that the plaintiff also reaped a quantity of wheat which had been previously sown by the intestate, and had applied to her own use a quantity of bacon left by the intestate ; also that before his death he had leased out parcels of the land of the plaintiff upon shares of the crop, *108and that these rents had been received by her since his death —and the defendant claimed to be credited in account therefor. He also insisted that he was entitled to credit for the sum of $750 which his intestate accounted for to the estate 0£ Marmaduke Norfleet, because of a slave of that estate sold by his said .wife, before their intermarriage. The answer further alleged that the intestate, in right of his wife, caveated the probate in Virginia of the will of one William Hill, her relation ; that by the said will all the property of the testator was given away from the plaintiff; that the intestate succeeded in effecting a compromise, by which was secured to the intestate the sum of $1500 or thereabouts; that about three months before the death of his intestate, when he was about to receive the sum so secured, he was restrained from doing so by an injunction obtained at the instance of the plaintiff upon an allegation of facts wholly groundless ; and that in about a week after his death, the plaintiff proceeded to Virginia, and upon giving an indemnifying bond, procured and received the said money.

Clear proof of fraud or necessary10 to reform a settlement, absentó? is heicUod be conclusive'

The defendant admitted that his intestate purchased the negro slave Jim back from David *Clark, but*declared that the purchase was effected with the money of the intestate, and that Charles and Doll were not purchased as substitutes for Jim, but were bought before he purchased Jim, and bought with his proper money.

This answer was replied to generally, and proofs were taken on both sides — the substance of which will be found stated in the opinion of the Court.

*Badger fy’JBevereux*for the plaintiff.

*Iredell*& *Moore*for the defendant.

Uaston, Judge,

after stating the case as above, proceeded as follows :

Cn the subject of the alleged error in the marriage settle-menf fhe plaintiff has examined but one witness, John II. Edwards. His testimony has been taken twice; the Court has attentively considered both his depositions, arid is at a *oss t0 Pronounce satisfactorily what is proved by them further than an impression of the witness, founded on conversations with the parties, that the property of Mrs. Norfleet *109was to be so settled as to secure the use of it to her intended husband during the marriage. This is very weak testimony to show that the settlement was intended to embrace *all*the property to which Mrs. Norfleet had claim, as well as that whereof she was possessed. The settlement itself, unless there be clear proof to impeach it for fraud or mistake, is conclusive of the argument of the parties. There would be no security for property if such solemn instruments could be set aside by vague testimony. Besides any inference from this “ understanding ” of the plaintiff’s witness is repelled by the testimony of Ann Sv Wooten, a witness on the part of the defendant. ' She, like the witness John H. Edwards, was a subscribing witness to the marriage settlement. She resided with the plaintiff at the time of her intermarriage with the defendant’s intestate, and deposes that some days before the said marriage was solemnized, the plaintiff, speaking of the settlement, informed her that it was a marriage contract made to please her children, which she did not expect to have proved, and “ that there was nothing said in the deed concerning the money that was coming to her, and the profits of the farm, and he James Gee, would get *it*in spite of her children.” The Court has no hesitation in declaring that the plaintiff has not made out a case for reforming the deed.

The construction of the deed is not free from difficulty. The bill charges that the property of the plaintiff, therein described as “ consisting of lands, slaves, stocks of different kinds, crops, household furniture and farming implements,” was conveyed upon trust for the use of the husband during their joint lives, with remainder to the issue of the marriage, if any, and in default of issue, then in trust for the plaintiff, or such person as she should appoint. On Examining the deed, however, it will be found that after the trust declared for the husband, during the joint lives of himself and wife, it proceeds to declare the trusts in the event of one dying and, *there then being issue*of the marriage. In *this*event it provides, that the said Hannah, if she survive, shall enjoy the profits of the property during her life, and the property itself shall be tansferrerd to the. issue. The deed then proceeds to declare the trusts in the event of the plaintiff *dying*
      *110
      *before her husband,*and leaving no issue, and in that event requires of the trustee to transfer to her husband all the settled property, except the land and slaves, and to transfer those unto such person or persons as she shall by writing, jn nature 0f deed or will, appoint. Neither of the events thus specifically provided for has happened, and unless we can collect from the instrument some other indications of a trust it would follow that no trust has been declared suited to the event which has happened. In such a case equity would follow the law, and hold the husband entitled to all the personal property reduced into possession during the coverture. We think, however, that we can collect from the instrument indications of a trust applicable to the event which has occurred, although it must be confessed that they are not explicit, and arise upon language very inartificial. The deed, after declaring the last mentioned trusts in regard to the land and slaves, proceeds thus, “ to the intent that the *said lands and slaves*may not be at the disposal or subject to the control or debts of the said James Gee, her intended husband — and in default of such issue of the intended marriage, and of such limitation or appointment in relation to the said lands and slaves, to the heirs at law of the said Hannah Nor-fleet.” When we consider that these slaves were previously to the settlement her property, and see that any dominion over *them*by her intended husband, except as to the profits thereof during the marriage, is so sedulously guarded against, and that the ulterior estate in them is limited to *her*appointees, and for want of appointment, to “ *her*heirs,” and when we further advert to the recital in the deed, that it had been agreed “that the *land and slaves,*and the profits thereof, after the death of the said Hannah and James, or of *whichever*of them should *.first*happen to die, in case there *should be no issue*of the intended marriage, should be at the sole *disposal*of the said Hannah, notwithstanding her coverture we feel ourselves justified in declaring that upon the whole instrument añ intent appears that the trustee should hold the said lands and slaves, after the death of the husband, without issue of the marriage, in trust for the widow, see *Sugg*v. *Tyson,,*2 Hawks, 472.

We do not feel ourselves authorized to infer such a trust *111in regará to any other property conveyed by the deed than “ lands and slaves.” The specification of these in the parts of the deed on which we have relied for inferring this trust, would seem to exclude the other property. A difficulty might have been raised on the part of the defendant which is waived by the answer, whether the widow’s share of the negroes of her deceased husband were conveyed by the deed. In law7 the property in these slaves, as in all the other chattels of the deceased,- was in the administrator. She could not with legal propriety be said to be “ possessed ” of any of them, but had a right only to claim - from the administrator, her one seventh part of the net surplus of the estate in his hands, after payment of debts. . But as it appears from -the casé that she had no other slaves, or personal property, ■ . .. _ . , f _ rr except her interest in the estate oí her husband, a construetion of the deed, which would exclude this interest wholly from the operation of it, would be to render the deed a nullity. The distinction taken by the defendant between her share in the slaves, and in the other personal property of her deceased husband, seems so reasonable, that even if we doubted of its correctness, we should on his *admission*adopt it. Slaves, though personal chattels, are regarded in our law as imperishable goods, which it is the duty of the executor or administrator to keep, and divide in kind, between the legatees and next of kin. An unnecessary sale of slaves would render him liable to them for a *devastavit.*But with regard to the other personal chattels which deteriorate by time, the case is otherwise. These, except when they have been specifically bequeathed, he is directed to sell, and after payment of debts he accounts for their value to his *cestui que*trusts. Without much *violence*of language Mrs. Norfleet might have been considered as possessed of an undivided part of the slaves, as the whole of them were kept together for the purposes of a division in kind, when she could not with propriety be said to have possession of any of the other chattels of her deceased husband, directed by law to be sold, kept by his administrator to be sold, and afterwards actually sold by him in pursuance of his duty. If therefore the trust inferred for the plaintiff applied to *all*the property conveyed by the deed, we think it would not sustain her *112claim against the administrator for the money part of her distributive share, because such distributive share (except as to the negroes) did not pass by the deed1.

*111the hands Orator1*" * share *ftme sole*J® plunder scription in sJtiement^ °f a11 thf slaves of which she sessed?S"

*112The award referred to in the bill and answer, and all the proceedings upon it have been exhibited. That award establishes that James Gee and wife were entitled to one seventh part of the personal estate of the late Marmaduke Norfleet, amounting to $15629 87 — that of this they had already received from the administrator the sum of $12,536 16, leaving a balance due them of $3093 71, and then awards that they shall take certain slaves of the estate, thereby set apart to them, and valued at the sum of $4301, and pay the excess of the value of these slaves above the balance so found due, $1207 29, to Weldon N. Edwards. The award found the whole value of the slaves to be divided, $36601 of which the one seventh part was $5228 71. As we have declared that upon the settlement, and in the event that has occurred, a trust did arise for the plaintiff in the undivided share which she was entitled to *of the slaves*of her first husband’s estate, we hold that she should have compensation from the estate of the intestate for the deficiency in the share of the slaves occasioned by reason of advances from the administrator, exceeding her distributive share in those parts of the personal estate which in the event that occurred, became the absolute property of defendant’s intestate. This difference of value, $927 72, is to be regarded as a debt to her upon the death of her late husband, and not before, since during the marriage he was entitled to all the interest and profits of the settled estate.

We see no other well founded claim of the plaintiff to compensation. The division of the slaves made before the awards, was altogether erroneous, and was treated by the referees as null. For convenience indeed they set apart to the persons respectively entitled to distribution, many of the same slaves as had been before allotted to them. But the partition made in the award is a partition of *all*the slaves. The former is treated as having conferred no rights.

There is no evidence to support the allegations that the slave Jim was bought with her money, or that Charles and Doll were either purchased with her money, or as substi*113tutes for Jim. And it follows from what has been already said that she has no claim to compensation, because of the furniture and stock purchased by the intestate.

Upon an the°sepa-f ^faate ried wo-tween her j^^nd’s adminis-Íatter’ísnot ®"ej-Je¿rt0 debts of the paTMby his coverture,

tenant for Jiíes den?is~ ses, dies rentes ¿hfe h!s admi-mstrator is not entitled ^ ft"y part

' On taking the account which will become necessary by reason of the compensation herein declared in favor of the plaintiff, the defendant may set-off the amount by any just claims which the intestate, or himself as the representative of the intestate has against the plaintiff. On some of those which have been brought forward in the answer, the Court has formed an opinion, and will declare it.

As the Court has put a construction upon the settlement which gives to the intestates in the event that has happened, an absolute interest in all the distributive share of his late wife, in her former husband’s personal estate, except the ne-groes, and has declared a trust for her in these negroes so that the same should not be affected by his dominion, control or engagements; and has held the intestate accountable only for the diminution of that trust fund — it follows that the debts of the wife which the intestate paid off, do not constitute a credit for him upon the account for compensation. He acquired a large personal estate *jure mariti,*and he took it subject to the obligations which the law imposed upon hiw as husband. There is no evidence that the wife made a gift to him of the slaves, or of the balance due her, because of the slaves.

The defendant’s intestate is entitled to a credit for the value of the emblements received by her, or for the hire of the negroes of the defendant’s intestate after his death, and for the value of any of his other personal property then converted to her use after.

The defendant is not entitled to demand from the plaintiff any part of the rents of the land which became due after the death of the intestate. Equity follows the law, and where a tenant for life leases and dies before rent day, it makes no appointment of the rent. *Jenner*v. *Morgan,*1 *P.*Wms. 392, *Hay*v. *Palmer,*3 P. Wms. 501.

The only remaining credit claimed is because of the sum of money stated in the answer to have been secured to the intestate, on the compromise of his caveat in Virginia, and received by the plaintiff after his death, under the pecu*114liar circumstances alleged. The facts in relation to this transaction are too imperfectly disclosed to enable us to pronounce upon the validity of this claim. The defendant is at liberty to bring it forward, and shew it in full before the commjgSj¡onerj should he be advised to do so. If the sum of money was, as the answer avers, secured to be paid *to the intestate*we do not see what is to prevent *the*defendant from re-claiming it from the person who has wrongfully-paid it to the plaintiff. Perhaps however, if the case be so, the defendant may treat it as so much money received by her to his use, as administrator of the intestate. If the money was not secured to be paid to the intestate, but to him and his wife, we should think that the interest in it never vested in the intestate. The Court however, makes no declaration on this matter, but reserves it for consideration upon the coming up of the report:

An account is directed to be taken of what is due to plaintiff for compensation, because of the impaired value of the trust fund at the death of the intestate, and the commissioner is to allow as credits on that account the fair amount of the claims on the part of the defendant, which the Court has recognized as correct in principle, and such others as the defendant may establish by evidence to the satisfaction of the commissioner, to be fair counter-demands against the demand of the plaintiff.

If the parties do not agree as to the assets of the intestate, and any thing is found by the commissioner to be due to the plaintiff upon the .above account, he must proceed to take also an account of those assets, and of the defendant’s administration of them.

In conclusion I would remark, that the Court regrets that a case like the present, involving questions worthy of dicussion, has been submitted without argument, and express the readiness with which it would listen to an application for a re-hearing from either party.

Per Curiam. Decree accordingly.