*Present*— Chancellors Hutson and Mathews.

#### Winifred Wilson, by her next friend *vs.*John Wilson.

CJLSF *LXT,*ai»

BUHo setup na,ue seiti<-. boVul-ñot nJ>y, ,l ñWd'e at1 the *220same time by í¡‘e vig ignorant oi such de-though'itap-Pil^índuccf ment to his thebond^af-ter the mar-avoid forfeP tm-e. Trus-liberty to dence to de" feat the trust deedorbond.

*219The complainant stated in her bill, that being about to he married to Archibald Baird, articles of agreement were entered into between theui,4sy which it was stipulated, that in case she should survive him, and there should be no children of the marriage, she should be entitled to receive during her life an annuity of TOOL sterling, out of *220his estate; but in case there should be issue of the mar» riagc, the annuity should be restricted to 250Í. sterling, which restriction should' continue during the existence of a£iC^ *3s;ic» 3iJd 1J0 longer — -That the marriage took effect en *the*20th October, *1773;-*and her husband Archibald bail'd died in the year *1777,*having previously duly executed; his last will, by'which ho bequeathed her several specific legacies, confirmed her marriage settlement, and devised his whole real-and persona! estate to.his son Wil-Ham A. Baird, (the-issue of the marriage,) and-in case of bi,s death under twenty-one years of age, and without issue, then he devised all his estate to her and her heirs.— ^1<3 bill further charges, that some years afterwards, being about to marry John Wilson, the defendant, he Srce-d to settle to her sole and separate use, all the rights and interests shediad under the settlement and will of her ih’st husband; and1 on the 8th of May, *1781,*.he executed a> b°n(h by condition of which he engaged, (in case the said-marriage should take effect,) to convey to John Saunders and Thomas Merrett, their heirs, &c. as trustees, for the complainant, the said Winifred, all .the estate, interest and property, which the said John Wilson might acquire by the marriage, in the annuity and also-in all-such real estate or other rights, to which the said W„ Baird might be or become entitled to under the settlement, or under the will aforesaid: Upon trust to permit the said Winifred to receive the said, annuity to which she was entitled under the- settlement of her first husband; and to receive and take the rents and profits of the real estate she might acquire to her sole and seperate use, independent of her said husband, and not spbject to Jjis debts; and that he would execute proper deeds, to give full effect to the agreement — That in .part performance the same agreement, the said John Wilson, after the intended marriage took effect, executed another agreement, on the 2d June, 1781-, by which, (after reciting the said bond,) be conveyed to John-Saunders hnd Thomas Morrott, their executors, administrators, &c. all the estate, right, title, &e. which the said John Wilson had acquired by his marriage, ,»f, in, and to the said annuity, in .trust for the complain^ *221aht, to her sole and .separate use, free from the control of her husband, and not subject to his debts — That her son 'No A. Baird died some time in the year 1788, under age .and without issue, by which event she became entitled, 'arder the will of her first-husband A. Baird, to his whole estate — That on the death or absence of the executors *of*her first husband Mr. Baird, administration witlrthe wilj annexe d was granted to the defendant John -Wilson-— That tfccz'gii it appears on the face of the bond, and of the instrument executed by the said John Wilson, that only the *real*estate, and the annuity secured by her marriage settlement (with Mr. Baird) *are actually settled,*(by said Wilson,) yet it was the. intention of said J. Wilson to settle on complainant the personal, as well as the real estate, to which she might be entitled on the death of her son; hut the same was emitted through error — -That complainant being dissatisfied with the conduct of said John Wilson, and desirous that the estate which he acquired by marriage with her, should be vested in trustees, con-formably to the agreement of the parties, she applied to her said husband for that purpose; but he has refused to comply with his stipulations, and marriage agreements; has possessed himself of the whole real and personal estate, and threatens-to sell the negroes, apply the proceeds to his own use, and to quit the United States — .That independently of these threats, he cannot long" remain in this state, as he was banished from Pennsylvania, of which he was a native, for bis adherence to the British, and he still remains under the penalty of the laws of that state,. The bill preys that the said John'Wilson may be decreed to come to a fair account, to pay over to complainant the arrears of annuity, and to convey the whole real and personal estate to trustees for complainant: And that in the mean time he may be restrained from selling any part of the property of the estate of Baird, claimed by complainant.

*220JULY. *1791.*

*221The defendant by his answer admits the complainant’s marriage with Mr. Baird,. — Baird’s settlement on her, — . h'is will and his death — He asserts that in the spring of 1781, he paid his .addresses to his present wife, who *222accepted of them — Denies that previous to, or at the marriage, he offered to make any settlement, or that she hinted a wish to that purpose — .They lived affection-atcly, till his *duty*called him to New York, in 1782 — . During that time they had a daughter, who is now alive, and at school at his expense — Ho admits the execution of the bond, and the assignment of the annuity; but he denies that they were executed on the 8th of May, when they bear date; on the contrary, lie positively asserts that they were executed at New York, about 28th August, 1782— That in consequence of letters from her, in which she represents, *“*that the whole of the estate to which he was en - titled in her right, was under confiscation, and advertised for sale/’ and requesting he would send her the bond and antidato it, he signed the papers, which are set forth in the bill — That he had then the precaution to get from the trustees a defeazance to the bond, which mentions the occasion of its having been given — He asserts that the property was not within the reach of the confiscation act— That it was a trick in her to obtain a settlement — .That not having time or opportunity to enquire into the business, he took the defeazance — That she availed herself of ills unquestionable affection, at a time when she knew that there was nothing in his power which he would not have done to make her quiet and happy — That he knew at the time, that the bond would he of little service — He admits the death of young Baird, under age and without issue, in 1788; and claims the personal estate as devolving on him: —-He also claims the lands during life as tenant by the courtesy — Admits his having obtained letters of administration on A. Baird's estate — Denies having ever proposed or intended to settle the personal estate of A. Baird on the complainant — Asserts that the whole affair was a contrivance on her part to get every thing out of his power, that she might throw him off, and act as she pleased: Denies that he ever intended to sell the negroes, or to quit the country; on the contrary, he is taking measures to become a citizen of the United States.

He then inserts extracts of her lottcrs to prove that the settlement was made after marriage, and at her it-*223quest, to avoid the confiscation or rather the effects of the acts of confiscation.

n. b. p. 197.

Upon the answer coming in, the complainant's counsel moved for an injunction to restrain the defendant from selling or removing the property in dispute; and also to obtain a conveyance of the property to trustees subject to the final decree: And that the defendant should in the mean time account before the master for the neat proceeds of the crop, and pay over the same to Messrs. Norris and White, to be subject to the future order of the court.

This motion was fully argued on the 16th and 17th March, 1789, by Messrs. Drayton, Bee, C. C. Pinckney, Pringle and E, Rutledge, for complainants. — And by Mr, Smith, Bay, Read and* Dcsaussurc for defendant.

For the complainant it was insisted, that the act of confiscation took in all the light of the defendant to Baird’s estate — That the deed of trust was good against Wilson himself, notwithstanding the defeazance- — That the defeazance was fraudulent as to his wife; and was so against the state, the object of th-c deeds being to elude forfeiture — And that like deed meant to include real as well as personal estate; the one being of little value in this country without the other, — .presumption that both were intended to be included — That such charges as are made in the bill, and not answered, are to he taken pro confcsso — That his banishment from Pennsylvania was charged and not answered, and as an alien he had no right to administer, nor to an estate, by courtesy — That the. deed, though voluntary, was good against himself, though not against creditors or subsequent purchasers — -That no man shall avail himself of his own fraud — That the defeazance was a fraud 011 the complainant: But it could not avail defendant, for a de-feazance must he made or agreed to by the person inte» rested in the estate; this defeazance was neither agreed to nor signed by Mrs. Wilson, for whose benefit the deed was made — That the trustees, giving the defeazance, was a breach of trust, they having no power from Mrs. Wilson, the cestui que trust, to do so — That the circumstance of Mrs. Baird’s interest in Mr. ’Baird’,” estate being chiefly *224contingent, was of no importance, as soon as it vested the agreement to settle attached upon it: That the court will carry into execution an agreement to settle an estate;, though a mem possibility. The counsel cited Shepherd’s Touchstone, 237. 2 Bla. 317. 2 P. Wms. 467. Ventr. 417, and Cro. James, 270.

Injunction granted.

For the defendant it was contended, that a person applying for an injunction, must first shew an actual or pro - bable riglit to the estate. Viner, title injunction, p. 426. 1 Harr. 193,594. Com. Digest, 153 — That this right has not been shewn by the complainant, for upon her marriage With defendant all her rights vested in him — That a bill praying for an injunction must be sworn to, by the positive provision of oiir law — .That this bill is not sworn to# which defendant had a right to require; nor could the complainant safely swear to it: But the answer is sworn to, and must be taken for true, and must have more weight — That an alien coming to this country, and marrying a person possessing real estate, and having issue by her, is entitled to the courtesy in the land. The counsel cited 1 Bla. 372. 2 Bla. 327, 342. 2 Bac. *375,*376. 2 Vesey, 627.

The court on the 18th March, 1789, stated that it would not give any opinion on the merits of the case — that whether the bond could be supported, or whether it should be defeated by the defeazance, must remain to be decided when the whole merits should be gone into: But that there did. appear upon the face of the bond from Wilson, a right in the complainant, and that to give an opportunity to go into the whole merits, it was necessary to grant an injunction to prevent in the mean time-any disposition of the property. — The court therefore, made the following order: That an injunction do issue to restrain the defendant from selling, removing, or in any other manner disposing of any part of the estate in bill mentioned: And that he do account before the master for all the profits of the said estate, which have or may come into his hands, and deposit the same with the master, to he subject to the future order of this court; except so much as may be necessary for the maintenance of the said defendant, Mr, *225Wilson, his wife Mrs. Wilson, and their child, and the customary expenses of the plantation; until a final decree 3hall be made in this cause: And that it be referred to the master to report what will be a reasonable allowance for the maintenance of Mr. and Mrs. Wilson and the child.

“■B- P-2!"0»

^ ^ *^3*

Afterwards various orders were made by the court; particularly some for the payment of money by defendant to complainant to suppoi’t her during the litigation, and for- enlargement of publication. Meanwhile a number of witnesses were examined. The complainant endeavoured to prove that Frazer, the British town-major, (who was a subscribing witness to one of the deeds, executed by John Wilson in favour of his wife,) had not left Charleston in the summer of 1782; and thus to discredit that part of the defendant’s answ-er, in which he states that the deeds were not executed at the time and place the bill charged, but long after the marriage, and in New York. Three witnesses of credit swore they were in Charleston, and did not know or believe that Frazer went from Charleston at all in the summer of 1782 — three others swore they understood and believed that he did go to New York in that summex*. John Saunders and Thomas Mex’-ritt, the persons named in the deed as trustees for Mrs. W. Wilson, veere examined for defendant, but without prejudice to the complainant’s right to object to the competency of the witnesses. Saunders swore, that being in New York, captain Wilson, some time in May or June, 1782, informed him, that he had received a letter from his wife in Carolina, in which she was apprehensive that the state (of South Carolina) would seize the estate of her late husband Baird, aud therefore requested him to make-it over to her, to secure it from confiscation: And he believes the bond and assignment were executed for that purpose only; and that they were executed at the same time and place, viz. New York or Long Island, in the summer of 1782 — That a defeazance was also executed there, and that the paper produced to the witness is the defeaz-ánce, and bears date the 28th July, 1782, and Frazer is not a witness to that — He did not recollect if more than o.no defeazance was executed; if there W'as, it must have *226been executed at the same time and place — -That the complainant Mrs, Wilson was not present at the execution of the bond or defeazance, nor does he know' whether she. ever *consented to it*— He did not understand that any of her former husband’s estate was to be settled on her. Thomas Merrett swore, that the defendant gave him the information stated by Saunders, at New York, in the summer of 1782 — That the bond, assignment and defeazance were executed at the same time — That Frazer, M‘Leod, Campbell and Gamble were all present — That the assignment was made to prevent confiscation, and the defeaz-.' anee to disclaim any right or title in the trustees to the estate- — That he was the confidential friend' of Wilson,— Mrs. Wilson was then in Carolina — Thinks there were other defeazances at same time — There was no intention of making a real settlement. Two other witnesses, Hardy and Gamble, were also examined.

*it.*b. p. 289.

Arg-uments :or complain-

At tire sitting of the court, on the 18th July, 1791, present chancellors Hutson and Mathews, Mr. Pringle moved, that the testimony of Hardy, Gamble, Merrett and Saunders, witnesses who had been examined in this case, should not bo read in the cause. This question was argued by Messrs. Pringle, Holmes and Pinckney for com- ■ plainant, and by Messrs. Desaussure, Parker and Read for defendant.

For the complainant it was contended, that the evidence of Saunders and Merrett cannot be received, because they are trustees; and that of Hardy and Gamble cannot be received, because it is only hearsay, as to the intentions of the parties; the trustees ought to have been complainants with Mrs. Wilson to support the deeds, and not witnesses to defeat them. Confidential persons cannot be coerced to give evidence to betray the confidence reposed in them, such is the case of counsel, Raym. 733. 1 Domat. 429. Trustees are admitted to benefit the cestui qiic trust, not to injure him. 1 P. Wins. 290. 2 Vesey, 296. The bill charges a fraud, — the witnesses are not produced to prove the fraud, but to defeat the whole deed, which is not meant by the case in 2 Atk. 229 and 243. In the case ' under consideration, if the deeds are- set aside, the trustees *227run no l'isk of a suit for breach of trust and damages: They are therefore interested in defeating the deed. The deed imports to be in consideration of love and affection; but the defendant wants by parol evidence to prove, that it was to elude a forfeiture, which is a consideration different from that expressed in the deed. This would he contrary to the statute of frauds, which is a remedial law. Where parol evidence has been admitted, it is where it is consistent with the deed, used only to rebut a resulting trust, which is not comprehended within the statute of frauds. 1 P. Wms. 118. An agreement in part, executed, takes a. case out of the statute of frauds. Mrs. Wilson, by her letter to her husband, requested only the the settlement of her annuity, hut he settled also the real estate: This was voluntary on his part, and valid against him: for at all events, she used no fraudulent means to obtain that. The cases have decided, that trustees joining-to destroy a remainder, it is a breach of trust. Executors arc not allowed to be witnesses, because liable to pay-costs. This is the case of trustees, who are also liable to suits for breaches of -trust. The mile is, that parol evidence may explain but never contradict a deed. The trustees were not set up for the benefit of Mr. Wilson, but of Mrs. Wilson. There are three defeazances in this case, — some hear different dates, — in others there are erazures — no confidence can be placed in them. A man cannot aver any thing against his own deed; consequently he cannot produce evidence for that purpose. 2 Bla. 295. Plowden, 434. 1 Rep. 176. 8 Rep. 158. Fraudulent deeds 'are good against the parties themselves. A defeazance supposes the deed properly executed — but a defeazance repugnant to the deed is void. Co. Litt. 236, 7. Wood’s Conveyancing, 46, 321, 645, 785. There is no condition in the defeazance, which is essential to a defeazance. A fraud was intended against the state, — but Mr. Wilson is not the person to take advantage of it. It is true, that on a suggestion of fraud, parol evidence may be admitted; hut the admission of it depends upon circumstances: In admitting parol evidence here, it would to be sure go to prove a fraud in the first instance; hut it would also prove *228another fraud, and that by themselves as trustees. lit matters of account both parties are actors, as if there had been cross hills. 1 Atk. 410. The highest evidence that can be *produced,*ought to be had; the defeazance would he the highest evidence, and whilst that is tó he had, the' parol evidence is inadmissible. Wilson in all probability knew that he was included in the confiscation law — That act was passed in February, 1/82 — A commissioner of. forfeited estates visited the plantation early in 1/82,— • Wilson remained in Charleston till May, 1/82: Yet Wilson says in his answei’, he knew the «state was not a subject of confiscation — Defeazance bears a different date from the bond, — the subscribing witnesses to the bond are not produced, — others are brought to prove what they ought to have done; this is contrary to every rule of evidence. Wilson says it was a good-natured act of his to let her have her jointure: If he had the defeazance then, how had he given her the jointure? If he had the defeazance originally, why ask her (as he did in his letteTs) to raise money on the jointure for him? He admitted himself an alien in his supplementary answer. If a man is under attainder, and an estate accrues to his wife, she shall bo considered .a feme sole as to such estate. 3 P. Wms. 37. The cases relative, to trustees may all be reconciled on this principle, that trustees, having no interest, have been admitted to support the trust, but never to betray it. Buller, 284. 1 Raym. 733. Trustees liable for breach of trust. 1 Atk. 24S. The assignee of a trustee must he a party to the suit, as the decree must first be against him, and the original trustee to stand as a security. 2 Bro. ch. cas. Burt *vs.*Denhurst. Cestui que trust entitled to have the benefit of the privileges of the trustee in this court. 1 Atk. 450. Parol evidence, even to rebut an equity, is admitted now with caution, even in articles of agreement; and not at all in solemn deeds. 1 Bro. 92, Never to explain away the intent of a deed. 2 Bla. Rep. 1249. Evidence of testator’s intent never admitted. 1 Bro. ch. cas. 84. 7 Bro. P. C. 18.

, Arguments ftrdefendant

For the defendant it was argued, that the trustee may . . be a witness against the trust 2- Inals per ¡ñus, 388— *229The bond and defeazance are one entire deed, and ought *to*be taken together — The trustees hare .been cross examined, which admits their testimony. The legal estates were in Wilson when he executed the deeds — He could therefore annex what conditions he pleased- — the defeazance is entitled to its effect, as well as the deed. Defendant offers to settle *2501.*per annum on the complainant, or he will take home a disobedient wife. Wilson is administrator of Baird with the will annexed — 'lie had the possession: Wilson is called upon to answer if the bond, and the deed confirming it, were not duly executed, and when, and upon what consideration — He answers that they were executed together wdth the defeazance, all at the same time; not when they bear date, but at a subsequent day-— antedated, and for thepurpose of eluding confiscation. This was the object pointed out by the wife, and ho accedes to it. The trustees are called in to support his answer in all this, though that stands on oath, uncontradicted; for her bill is not sworn to. They are competent to state the real truth of the facts — They have not done any act in breach of trust — They have neither sold nor wasted the trust estate: IIow can the disclosure of the truth, amount to a breach of trust? They state the object of the deeds, and that the defeazance accompanied the deed, to give effect to the real object; which was not to make a real settlement, but to elude a forfeiture: If that was wrong, she shared in the blame, as she suggested the pía» — and she is now complainant; and she is not more entitled to the protection of the court than defendant.

For defendant were cited the following cases, 2 Atk. 288, 9, Man *vs.*Ward, where lord Hardwicke expressly lays it down, that though in general the rules of evidence are the same in equity as at law, the court of equity will admit trustees to be sworn, (though not admitted at law,) in order to come at fraud, or to know the true and real intention of a trust, or use, declared under* deeds. Also, 1 Vesey, 61, 2. 2 Vesey, 446. 2 Atk. 98, 9, 283, 524. 1 Vesey, 323. 2 Atk. 254. 3 Atk. 388. 1 Bro. C. C. 599. Cowper’s Rep. 340. 1 P. Wins. 300. 2 Atk. 40. 2 Vesey, 629. 17 Viner, Pl. 8. 2 Bla. 327. Cro. James, 469.

*230After the argument of counsel, the court proceeded to deliver its opinion on the point of the admissibility of the trustees as witnesses, on the part of the complainant. r^ie reasons of the judgment of the comí; are not put on record: But I possess a manuscript in the hand-writing of chancellor Mathews, corrected in the hand-writing of chancellor Hutson, which is endorsed as follows: *“*The opinion given by the court, on the point of law, whether the trustees could be admitted as evidence to defeat the trust deed;” which paper was found among a few of the papers of the Wilson cause. The following is a copy of that opinion:

> *“*The court said, there was not a single case of the .number cited by the counsel, which came up to the point now contended for, viz. that the trustees to a deed have been admitted to give parol evidence to defeat, or destroy the trust deed. The court has never gone further than admission of parol evidence, to explain, for the purpose of correcting errors, unravelling doubts, or apparent contradictions; and in some very special instances, to discover fraud. But no case has been produced to shew that the trastees have been admitted to prove the deed, to which they were parties, to bo fraudulent ab initio. No such case is to be found, as it would be repugnant to law and equity. The case of Man and Ward, in 2 Atk. 229, (relied on by the defendant’s counsel,) is the only instance where the grantor was admitted to prove the grant fraudulent: But in that case the grantor never had any estate in the thing granted; but it was a mere deception, to defraud the rightful owner — and it was well enough, under such circumstances. But that is not the case here — The defendant Wilson does not grant to the trustees the rights of others — There is no apparent fraud on the face of the deed, quoad Mrs. Wilson. But it is said there was a de-feazance to the bond or deed, to prove which the trustees are to he examined; and to shew that it was intended originally to prevent the trust deed taking effect, and were both executed at the same time. But the deed of defeazance itself is the best evidence of its existence; and it would be straining the rules too much to admit evidence *231to prove that a defeazance was executed at the same time with the trust deed, although it bears date fifteen months after. A witness who has been guilty of fraud himself, shall not he permitted, by acknowledging the fraud, to injure a third person, who appears to be by the first deed an unimpeached cestui que trust; and thereby to exonerate himself from all the ill consequences that might arise to him, if the first deed should be establishad. He cannot be considered a disinterested witness. In Man and Ward the trustee was admitted as a witness to defeat a fraud, by giving evidence of the true statement of facts,- and thus restoring the éstate to the real owner. But' to permit it in this case, would he to sanctify a fraud, and to defeat the interest of a third person, who has a fair interest in a bona fide deed of trust. — Upon the whole, the court is of opinion, that the authorities reject the admission of trustees to defeat the trust deed; and shew that trustees are punishable for breach of trust: And where lord Hard-wicke says that parol evidence is admissible in equity to prove the merits or intentions of a deed, he could not have meant to go further than to say, that such evidence might be received to explain a deed — surely never to defeat it, unless there was some gross fraud; and certainly never where the trustee, called upon to give evidence, was himself particeps criminis, and swearing to exonerate himself, and to injure another. No deeds or settlements would he safe, if the trustees were admitted to come in, and by their evidence to defeat the trust estate. It would open such a door to fraud and perjux’y, and produce evils of such magnitude, that this coui't could not tolerate it. It was suggested in the answer that the complainant used fraud and misrepresentation to defendant, to induce the execution of the trust deed; bxit the coux*t is of opinion there has been no evidence of such fraud. The evidence shews that px’cvious to any letter being written by the complainant Mrs. Wilson to her husband, on the subject of tlie estate being confiscated, the commissioners of forfeited estates had actually taken hold of the estate; whether as Baird’s or Wilson’s is immaterial, for it justified the suggestion on the part of the complainant. The court *232was therefore of opinion, that no parol evidence is adniis-sible in this cause, which goes to defeat the trust deed: Therefore the testimony of the witnesses who had been examined *to*that point should not be read.”

*a.b.p.289.*

3. b.p.290-l.

The entry in the register book is as follows: Wilson *vs.*Wilson — “The. court ruled that.no evidence which tends to defeat the validity of the trust deed in hill men tioned is admissible.”

The cause was then brought to a hearing on the merits, and was fully argued for several days by Mi*. Prin-gle, Mr. Holmes, general Pinckney, and Mr. E. Rut. ledge for complainant; — and by Mr. Dcsaussure, Mr, Parker, and Mr. Read for defendant.

On the part of complainant it was insisted, that this was not an unconscionable bargain, on the part of Mrs. Wilson. It was obtaining a settlement merely of the annuity which she had by her former husband for a valuable consideration, to wit, marriage. The expression in Mrs. Wilson’s letter to her husband, “ I will make use of the settlement if I can; if not, I will say I have no claim,” ought not to defeat the deed. It is not evidence of her not relying on the settlement; but of her apprehensions at a moment of embarrassment and distress. During the whole of Mrs. Wilson’s correspondence with her husband, her son by her first husband, Baird, was living' — Dn his death (in 1788) a great accession of fortune accrued to Mrs. Wilson. If a settlement had then been demanded by her, the court would have ordered it: But this is not done, —and will the court deprive her of the settlement originally obtained? The endeavour of the parties to evade the confiscation law, was not an immoral act. It is not a general law of the land; but a penal and strictlaw, against a few offending individuals, named in the act itself. Al • though the confiscation act declares all deeds and act3 done contrary to it to be void, the state is not a party here, And Whatever effect the claim of the state might have produced, it is not for Wilson, the defendant, to avail himself of the act. To give effect to the act, it was necessary to have made the state, or the commissioner of confiscation, a party to the suit-. Wilson’s possession of *233the negroes, was in liis character of administrator, and not by virtue of his marital rights; and a husband possessing himself of an estate as administrator in right of his wife, is only a trustee for her. Wilson is an alien, and cannot hold the land under any pretence — The wife's rights in the land are not forfeited by her marrying an alien. If the defeazance had said that on condition, the vstato was not confiscated, then the settlement was to be. void, and the estate restored fully to the husband, that might have been good. But there was no condition to the defeazance, which was directly repugnant to the deed of settlement, and Mrs. Wilson was not a party to it, nor *•*onus ant of it. The trustees do no more in the defeasance than renounce their trust; but their doing so does not defeat the deed of trust. Their declaration that they would re-convey to Mr. Wilson, is of no validity without the consent of Mrs. Wilson. It would he to admit, that trustees erected to support trust deeds, may destroy them, without knowledge or consent of the cestui que use, which is contrary to every principle or mile of the court. The. several papers called defeazances have different witnesses, and bear different dates, and the witnesses speak of different places of execution. This throws discredit on them all. The court has refused to admit the testimony of the trustees, on oath: It will not receive, their evidence of the intent of the transaction, in the shape of a defeasance, not on oath. If the defeazance had really been fair an<l valid, Wilson's subsequent declaration tliat it was a good-natured act in him to give up her jointure, was a confirmation of the bond; and shews that he did then intend such a settlement as is contained in the bond. If the defeazance had been incorporated in the body of the deed of settlement, it would have been rejected as repugnant — -for the rule is, that the latter clause of a deed contradicting a former, is void.

The following cases were cited for complainant, 3 Atk. 21, 655. Talbot, 65. 2 Bla. 387, 327. Shephard, 381. 5 Bac. 396, 403. 1 Vesey, 539, Jewson *vs.*Moulson. 2 Atk. 520, 97, Douglas, 672, 697. 1 Bla. 44. 1 Ventr. 32. 2 *234Vesey, 375. 1 Atk. 271. 1 Stra. 503. 1 Eq. Cas. abr. 67. 2 Eq. Cas. abr. 481. 3 P. Wms. 37.

For the defendant it was argued, that it was contrary the authority of the decided cases, that a party shall be allowed to set up a deed for a contrary purpose than that for which it was intended. The defeazance was strictly conformable to Mrs. Wilson’s own proposition by her letters, which was that such a settlement should be Inade as-would secure the estate from forfeiture; and that when that purpose was effected by the deed, the defeazance was to prevent its having any other effect. The discredit attempted to he thrown upon the defeazance, is Sot warranted by the evidence. It is common for parties 'to multiply copies or duplicates of an important paper, especially in time of war and peril. The defeazances are not dissimilar in substance or object: And the witnesses may very well, after the lapse of some years, forget at first, that *they*had seen two or more papers executed to the same purpose. Marriage settlements are not to be extended beyond their import: They are deviations from the fixed laws of the land, and should not he carried to extremes. *They*will become dangerous instruments of domestic unhappiness, by setting up imperium in impe-rio. The separation of interests between husband and wife, produced by marriage settlements, is calculated to produce many mischiefs, discords, loose morals and otlier ill effects. It relaxes the great bond of family union, and should not be favoured. The defendant executed the deeds under an impression made on him by Mrs. Wilson’s communications, that the estate would be taken from him by confiscation. This was not perfectly correct or-certain, and his act, under a false or doubtful impression, is not binding. It is a mistake which the court will rectify, or relieve against. A defeazance without a condition is good, where tlxe deeds are merely executory, as in this case. It is obvious, for Mrs. Wilson’s letters shew the fact, that these deeds were obtained by her solicitation, after marriage, expressly to avoid confiscation — That was the intention and the object of all the parties — The complainant, one of those parties, cannot then be permitted *235to avail hei’fjcif of the deeds now, or induce the court to lend its aid to give them a literal execution, to work a different purpose. When two parties enter into a deed contrary to law, or to evade the law, this court will not support it — it will not assist to give it effect. Mrs. Wilson cannot execute any deed, under coverture, to defeat the lights of her infant daughter, in the inheritance: Yet such would he the effect of supporting these deeds made by the husband, after the marriage, if they are supported by the court, as to the land.. The annuity ceased on the death of young Baird, the son — it was merged in the inheritance. The expression used by Mrs, Wilson in her letter, shews that she considered the deeds as raised up for a special purpose, to elude confiscation, and for no other purpose: For she says, ‘s If they will admit of marriage settlements, I will shew mine- under the deed” — Si if not, I will say I have no claim.”

Tmcmir. nnor. lstvol-P-2*-

Decree deli-*iiu.1*son,

The cases cited lor defendant were, 1 Bla. 442. 3 Bla. 2 Bla. 498. 433, 327, 342. glas, 253, 450, 468, 695. 429. 1 Bac. 286. 1 Vern. 261, 227, 233, 203. 2 Vern. 270, 307, 518, 186. 1 P. Wms. 108, 378. 2 P. Wins. 641. 1 Atk. 295, 547, sir F. Head’s case. 2 Atk. 98, 160, 257, 330, 447. 3 Atk. 72. Brown, C. C. 151. 2 Vesey, 54. Shephard, 182, 69, 382. Dou-2 Eq. Cas. abr. 481, case 15.

The court, consisting of chancellors Hutson and Mathews, (for Mr. Hugh Rutledge, then recently appointed chancellor, not having heard the arguments in the first stages of the case, did not sit at this hearing.) delivered their decree on the 4th August. — Chancellor Hutson deli* vered the judgment of the court. -

After greatly commending the learning, industry and ingenuity of the counsel, he stated that the first question for consideration was, whether the bond given by the defendant to the trustees, for the. benefit of the complainant, ¿3 such as this court will support?

2d. What is the extent of the bond, or of the property meant to be conveyed by it?

The defendant’s counsel made the following objections to the bond:

1st. That the bond was obtained by fraud or misrepresentation.

*2362<f. That the wife was particeps criminis, and not to he favoured.

sd. That being a contract to defeat or evade a law, (^*10 confiscation act) it is ipso facto null and void.

4th. That it was given for a particular purpose, and ought not to be applied to another.

5th. That there was a defeazance' executed at the Same time, which defeats it.

To these objections the court gave the following answers — To the four first, that there did not appear to be any fraud or misrepresentation. The commissioners of confiscated estates had taken possession of the estate' — the wife, to save it, implored her husband to execute the bond, and protect the property for her and liei' child. This was a laudable motive; there was no crime in it. That it did not appear that the bond was given merely to cover the property from confiscation in evasion of the law; it was also to make provision for the wife and child. That with respect to the defeazance, there were three papers with different witnesses from those to the bond, — this is a mark of fraud. The bond itself is unobjectionable, as to the consideration, which was marriage; or as to the subject of it, the property; or the execution. But the defeazance has no force: It was not between the same parties, — the wife is no party to it, — the trustees had no right or authority to do any act to avoid the trusts, without the concurrence of the cestui que trust — nor is there'certain proof whether it was executed and delivered by the trustees to Mr. 'Wilson at the same time when he executed the bond. The defeazance therefore not standing in the way of the bond, it is good and valid, and entitled to its full effect from the court. With respect to the extent of the property covered by the bond, and its effects, the court said it covers the annuity; and as to the land, the defendant never had any legal rights in the real estate. He wd». attainted in Pennsylvania for adhering to the enemy, and holding a commission. His pardon from that state extended only to Ills person — he was an alien, and could not hold land. — [The court said nothing as to the personal estate claimed by complainant, as omitted by mistake-]

*237r. u¡p.99.

It was therefore decreed, that the master do dispose, on a credit of one, two and three years, oí ns many of the negroes as will he sidfioeut to raise the animal aura ol‘ -25CÍ. for the payment of Mrs. Wilson's annuity, dining her lile, to commence from the death of W. *A,*Bain!: That he fake, an account of all suras received by Blrs. Wilson, from that time, the amount of which is to bo carried i.*> the credit of Sir. Wilson, against the annuity: That lie do also inquire what will be a proper allowance to Mrs. Wilson, fox* the une of the land by Mr. Wilson, from the death of W. A. Baird, (the. son.) and report accordingly: That in the meantime tire injunction to stay Waste be continued, and that each party pay their own co.-ds. — -«(Icneral Pinckney, Mr. If. ilntledge, Mr. Prin-gle, and Mr. Holturu fire complainant,---Detmussurc, Barker and Read for defendant.