#### *Reuben Dennis et al*vs. *John*Dennis, *jun.*

Bill to reform a deed of gift of negroes, more than thirty years old,.to M. D. “ her heirs, executors and administrators : *”*it was contended that the donor, who was dead, intended to give only a life estate to M. D., with remainder to her children; whereas, by the fraud or mistake of the pensman, an absolute estate was given to her. Bill dismissed.

*Before*Wardlaw, CL, *at Yorlc, June,*1851.

Wardlaav, Ob. The plaintiffs are some of the children and-sons-in-law of John Dennis, sen., and Mary his wife, and prosecute against the defendant, a son and principal legatee of said *308John Dennis, sen., a claim to reform, according to the supposed intention of the parties, a deed from John Chesor and Anna his wife, to the said Mary Dennis, a sister of the said Anna Chesor.

The said John Chesor and Anna his wife, by deed, dated March 1, 1818, in consideration of love and affection to Mary Dennis, wife of John Dennis, gave and granted all their goods and chattels, consisting principally of three slaves, Hannah and her two children, Harry and Sarah, “ to hold all the said goods and chattels, with the three above named negroes to her, the said Mary Dennis, and wife of John Dennis, as aforesaid, her heirs, executors, or administrators from henceforth.” Simultaneously and on the same paper, John Dennis and Mary his wife, agreed under seal, as a condition of the deed, that they would “ support and maintain the above named Anna Chesor, with her issue begotten by her body, in meat, drink, and clothing, and treat her with her issue in a decent manner during her natural life.” The deed and counter-part were drawn by George Ross, a farmer of high character, now deceased; attested by said George Ross and by Thomas H. Smith; proved by Smith before a magistrate, May 9, 1818; and recorded in the office of the register of mesne conveyances of York district, (in which district all the parties resided,) May 9, 1818, and in the office of the Secretary of State, May 2, 1827.

Smith, who was examined on this trial, testified that a draft of another deed was presented to John Chesor and wife, which she refused to execute, because it made John Dennis the donee, and that two or three hours afterwards George Ross drew the deed which was executed. That to the latter, John Dennis at first made objection, but was quieted by George Ross’s telling him, “you need not make a fuss, as you are Mary’s heir, and this is as good to you as the first deed” — that this remark of Ross was made while they were standing near the steps of the door, within hearing of John and Anna Chesor, who were sitting at a table in the shed a few feet off, and immediately before the deed was read and signed.

Karen Smith, a daughter of John and Mary Dennis, who was *309at first a defendant in íhe canse, but as to whom the bill was dismissed, and who had assigned her interest in the subject of controversy to her son, Elias Davidson, not a party, was admitted as a wi tness. She testified that Anna Chesor would not sign the first' draft making the property over to John Dennis, because she intended it for Mary Dennis and her children — that George Ross drew and read to her the one executed, which was to Mary Dennis and her children — that John Dennis was dissatisfied because the property was not given to him, and George Ross told him not to mind it — that Anna Chesor said John Dennis might have the use of the property while his wife lived, and at her death to go to her children — that George Ross said -'heirs’ was the proper way of putting it down; as Mary’s children were her heirs — that John and Anna Chesor went from the shed where the deed was signed into the hall adjoining, with an open do’or between, when Ross was talking to Dennis. James Curry, the widowed husband of a pre-deceased daughter of John and Mary Dennis, testified that John and Anna Chesor and Mary Dennis' refused to sign the first draft, because it was given up that the deed should be to Mary Dennis and her heirs — that John Dennis was dissatisfied with the second draft, until Ross took him aside and said it was immaterial, as he could have the use of the property as long as his wife lived — that the parties wanted the deed made to Mary Dennis and heirs, and Ross told them the effect of this draught was that the property would belong to Mary Dennis and the heirs of her bo'dy or children. These latter two witnesses also testified to declarations of John Dennis and of George Ross frequently, and until a recent date repeated that the property would belong to the children of Mary Dennis after her death. It was also proved for the plaintiff that John Chesor and Anna his wife, and Mary Dennis, were illiterate, and that the former two were of weak minds.

John and Anna Chesor have been dead many years. The latter, from the time of the execution of said deed until her death, lived in the house of John Dennis, and was maintained by him.

*310In 1825, John Dennis exchanged the negroes Hannah and George, the latter born after the execution of the deed, with Robert Latta, for two other slaves. In the bills of sale made by-Dennis and Latta each to the other, their wives respectively joined. John Dennis treated the other slaves named in the deed as his own.

John Dennis died October 10, 1850, leaving of force his will, without date, executed October 10, 1845, whereof his wife Mary and his son, the defendant, were appointed executors; and whereby he bequeathed two slaves and some other property to his wife for life, and all the rest of his estate, including by name the ne-groes now in controversy, to the defendant and the heirs of his body living at his death. Testator also directs that his wife Mary and his son John, the defendant, at his death pay all his just debts. Defendant has qualified as executor.

Mary Dennis never qualified as executrix, and died in the course of the present year, after the first of March. She was intestate, and defendant has become administrator of her goods and credits.

The bill alleges that it was the intention of the donors and of Mary Dennis, in the execution of the deed, that the property should be given to the sole and separate use of said Mary Dennis for life, and after her death to her children; and that the miscarriage of this intention, conceding that, according to the terms actually employed in the instrument, the marital rights of John Dennis attached should be corrected by the Court, whether it arose from the fraud and collusion of the pensman and John Dennis, or from the mistake of the pensman and the parties, as to the legal effect of the words of limitation.

The Chancellor was much pressed to order an issue at law in the case, particularly on the question of fraud. The pretence of fraud in the matter proceeds only on the conjecture, that the donors did not hear the remarks by which George Ross reconciled John Dennis to the deed. It would be an abuse of discretion to protract, upon such slight ground, the decision of the question. *311The plaintiffs are mere volunteers, who seek to reform a deed after the lapse of thirty years, in the progress of which the donors, donees and scrivener have all died, and they have no claim to vex another forum with their vague imputations upon the character of their ancestor and his trusted friend. The suggestion of fraud -is unsustained by proof.

The plaintiffs have as little standing on the ground of mistake. The discrepancies in the statements of the three witnesses, who testify as to the declarations and conduct of the parties preceding and attending the execution of the deed, strikingly illustrate the wisdom of the rule, that parol testimony is inadmissible to vary or explain the terms of a written instrument. It is 'probable that all concerned in the concoction and execution of the deed mistook the legal effect of the words of limitation employed, but it was a mistake arising altogether from overweening conceit of themselves, or rash neglect in advising with the skilful. Those who will ignorantly and rashly employ technical terms of the law must submit to the consequence of having the terms technically construed. If relief be afforded in this case, the Court must undertake to correct all the miscarriages of audacious ignorance in conveyancing. We might thus acquire a wide field of jurisdiction and business. An illustration might be furnished from the terms of the devise in John Dennis’s will to the defendant *;*but I forbear. After our own decisions in *Wesibroolc*vs. Karbeson, 2 McC. Ch. 112, *and Iiyon*vs. *G-oodwin,*McO. Eq. 451, it would be ridiculous excess to extend this reasoning. It is ordered and decreed, that so much of the bill as seeks to reform the deed of John and Anna Chesor be dismissed.

Erom the statement of the bill, although there is no prayer to this effect, I suppose the plaintiffs desire an account of the estate of Mary Dennis from the defendant- as administrator. The objection in the answer, that this object is prematurely sought, is well taken; and the suggestion, made also in the answer, that whenever this account be taken, the legacy to Mary Dennis must contribute rateably with the legacy to John Dennis for the pay*312ment of tbe debts of tbe testator, John Dennis, is sound and proper. Nevertheless, tbe bill in this respect is retained; and at tbe expiration of tbe year an order of reference may be applied for. Let tbe plaintiffs pay tbe costs.

Tbe complainants appealed, on tbe following grounds :

1. Because it was most clearly proved on tbe bearing of this case, that tbe real intention of all tbe parties to tbe deed or contract of the 1st of March, 1818, was to secure tbe negroes then conveyed, to Mary Dennis and her children, and to them only, and tbe Chancellor should therefore have ordered the deed to be so reformed as to carry that intention into effect.

2. Because there was either a mistake or imposition on the part of George Ross in drawing tbe deed of 1st March, 1818, which gives this Court power to reform the deed, so as to carry tbe real intention of tbe parties to that deed into effect.

■3. Because John Dennis, sen., uniformly admitted that he held these negroes as a trustee of bis wife, and his acts all went to show that be admitted that the negroes would go to his children 'after the death of his wife; which acts and admissions for so great a length of time gave character to the use and possession which John Dennis, sen., had of the said negroes, and deprived him of the power to dispose of them by will, nor did he use them as his own, as the Chancellor has assumed.

4. Because the deed by its terms, and John Dennis, sen’rs. long possession as trustee of his wife, enured to tho benefit of ,his children, and deprived him of the plower to dispose the negroes by will.

5. Because his Honor should have ordered the issue prayed ■by the complainants as to the question of fraud, imposition, or mistake, in the deed of 1st March, 1818, from John and Anna .Chesor.

*■Smith,*for the motion.

-, contra.

The opinion of the Court was delivered by

*313Wardlaw, Ch.

Where the parties to an agreement have expressed their purposes and stipulations íd writing, a most salutary-rule of law inhibits the admission of parol testimony to vary or explain the written instrument. As defensive equity, for example, in resisting the specific execution of a contract, Courts of Equity permit extrinsic evidence of the fact, that the real contract of the parties has not been truly reduced to writing, as of any other fact that makes it unconseientious to enforce the contract in its written form. Put it is not clear that a plaintiff is ever allowed to give evidence of mistake in a deed or other writing, for the purpose of reforming the instrument. Such relief is at least to be extended with the utmost caution. The proof of the mistake should be unquestionable, and the parties to the mistake should be also parties to the suit. *Mayo*vs. *Feaster,*2 McC. Ch. 142.

In the case before us, the parties were probably ignorant of the effect of the terms of limitation employed by them, but there is no proof of mistake. No word was inserted in the deed nor omitted from it, not intentionally inserted or omitted. If we were willing to reform the deed, it would be impossible to ascertain from the testimony the terms and particulars in which it should bo reformed. We may infer that there has been miscarriage in an attempt to limit personalty, a matter which frequently baffles the skill of the expert, but we cannot learn from the testimony what were the precise intentions of the parties.

It is fair to conclude, that whatever may have been the original intentions of the parties, they acquiesced in the actual operation of the deed. It was competent for them to cure error by acquiescence. John Ohcsor, the person who has most cause to complain of the misdirection of his-bounty, has made no clamor. It would be surely unsafe to look back through thirty years for the original wishes of the parties, and force all their subsequent acts into conformity to these Ayishos.

It may be gravely doubted whether a deed could over be reformed after the death of the grantor. I apprehend that where *314a mistake should be corrected, the Court would not undertake to reform the deed by the personal act of a Chancellor or a master, but would, by attachment or other process, compel the grantor to execute an amended deed. But we have no power oyer the deceased.

Granting, however, that the heirs of a deceased grantor might be compelled to reform a deed as to realty, and his personal representatives be compelled to reform a deed as to personalty, in the present case, the representatives of John and Anna Chcsor are no parties to the suit. The defendant in his answer, operating in this particular as a demurrer, objects to the lack of these parties.

The statement in the third ground of appeal, that John Dennis acknowledged himself a trustee for his children, is not suggested in the pleadings, nor supported by proof.

Other considerations might be presented, but in any view we can take of this case, we think the plaintiffs are not entitled to relief.

It is ordered and decreed that the appeal be dismissed, and the decree be affirmed.

JOHNSTON, DüNKIN and Daegast, CC., concurred.

*Appeal dismissed.*