.Present — Chancellors Mathews and Rctiedge.

MARCH, 1795

#### Ann Garner and her children *vs.*the executors and creditors of Melcher Garner, deceased.

CARE c,r.

DECREE BOOK, I). 198.

not recorded “h^orlgLid act> not'void the obscurity ilCtT mid children the^enefi^^* the marriage +fettl!:m"l!!i though. the property h: d bonds pas.H d to crédito:’s of the husband, under thepreuunp • tioii uud die deed was void. A very gross orw in the deed, by ail alteration made by 1be husband, after tbe deed vras drawn, changing tbe sense materially, corrected bv tbe court. Construct ion of the deed,

The complainant being about to marry Melcher Garner, and being possessed of twelve negro slaves, a marriage settlement was executed by said Melcher Garner, on the 14th July, 1768, by which he agreed, in considera-tio,n of the intended marriage, that the trustees should hold the said slaves, in trust; that Melcher Garner should receive the rents and profits of the hire and labor of the said slaves, during the complainant’s life, without any account; *“*and then, upon the trust that if the said complainant Ann Garner should he living, that they •would suffer her to hire out and work the said slaves, and the issue of the females, and receive the profits thereof, during her natural life;” and then, upon the trust that the trustees would deliver up the said negroes and their increase, to the heirs of the body of the said Ann Garner.

The hill charges, that the real intention of the parties to the deed was, that the intended husband Melcher Garner should have the annual profits of the settled property during his life; and then that the profits should go to Ann Garner; and after her death the said slaves and their increase were to be divided among the complainant's children; but that before the execution of the deed it was altered by mistake, in such manner as to produce the absurdity which now appears on its face, to wit, that after her own death she was to have the use of said slaves.

*438The bill states, that Melcher Garner died about the 13th June, 1789, having previously executed his last will and testament; and Benjamin Snipes proved the same. an(* thereon as executor. That during the life time of the said Melcher Garner, many judgments were obtained against him. That the deed of settlement not having been recorded according to a conceived requisition of a law of this state, passed the 8th day of March, 1785, the complainant Ann Garner was led to believe that the said negroes were liable for the debts of the said Melcher Garner. And the said negroes, with other property really belonging to Melcher Garner, were sold by the executor, by permission of the ordinary, in the month-of March, 1791; at which sale the complainant Ann Garner became the purchaser of all the slaves included in her marriage settlement except three, which were bought by Plowden Weston. And the said Ann, under the impression given her that the settlement was, void, gave her bond to the acting executor Benjamin Snipes, for the ne-groes she purchased. That complainants afterwards learned, that by a decree of this court, in the case of Mrs. Lennox’s marriage settlement, settlements such as the complainants were adjudged not to be comprehended in the act of the legislature; and that by a subsequent act, of thq 21st of December 1793, further time was given to record such marriage settlements. That however, her settlement was recorded on the 11th July, 1792; and she thereupon applied to the executor of her husband to deliver up her bonds, and refund the money she liad paid on them; and to Plowden Weston to deliver up the three ne-groes lie had purchased. But they have refused to comply with complainant’s requests — The bill prayed for relief.

The answer of the executor of Melcher Garner admitted the facts stated in the bill of complaint; except that he is unacquainted with the manner or occasion of the alteration of the deed of settlement, which produces the absurdity stated by the complainant. The executor further stated, that he transferred the bonds of the purchasers of thc;estate of Melcher Garner, including the settled ne-*439groes, and amongst others the bonds of the complainant to several of the creditors of the estate of the said Melcher Garner, to wit, to general W. Washington, James Gre-gorie, and John Blake. That this distribution of the bonds of the purchasers took place prior to the act of 1793, giving further time to record marriage settlements; the executor having been advised that the marriage settlement was void for want of recording within the prescribed time. That the defendant could not comply with the request of the complainant to restore her bonds, as she had actually assigned them to creditors of Melcher Garner's estate.

The answTer of Plowden Weston, a creditor of Mel-chor Garner’s estate, slates, that Melcher Garner was largely indebted to him; and on the 3d October, 1787, mortgaged as a security for the payment of the said debt, (amongst others) two of the negro slaves named in the deed of settlement. That defendant searched the offices for marriage settlements or other incumbrances before he accepted said security; and finding none recorded, and being ignorant of the one since produced and set up, he considered himself secure. Defendant admitted that at the sale of the estate of Melcher Garner he became the purchaser of several of the negroes, including those mortgaged to him: And he gave his bond to the executor fot the amount of his purchase, with a stipulation not to be called on for payment unless prior incumbrances were entitled to payment. That the mortgage of the negroes to him being dated on the 3d October 1787, and the sale of the estate being in March 1791, the defendant conceived the act of December 1793 was ex post facto as to his case-Defendant admits that the deed of settlement is nonsensical as it now stands, but does not knowr that the inter-lineation was made by mistake, or that it was not recorded according to the act of the 8th March, 1785, on that account.

The answer of James Gregorio and John Blake neither admits nor denies the facts alleged, and requires proofs of them. Defendants admit that the settlement, as it stood, was nonsensical and impossible. But they do *440not admit that it was intended that the property should go in the manner cliai'ged in the bill, which is merely conjee-tural. Defendants admit the death of Mr, Garner, and ^le saM °f Ms estate by his executor, including the settled property, and the distribution of the bonds given by the purchasers, and amongst others to them. That they were judgment creditors of Melcher Garner before his death, and as early as the year 1785; hut they'consented to the sale of the estate on credit (not to injure the estate) and to receive the bonds of the purchasers in payment. And Mrs. Garner being the chief purchaser at the sales, and having given her bonds and mortgages to the executor, he assigned part thereof to these defendants, who gave up the original bonds of the said Melcher Garner to the executor. That all . these transactions took place with the knowledge and consent of Mrs. Ann Garner the complainant, and she acquiesced in the sale of the negroes included in the settlement; and agreed to the transfer of her bonds (given to the executor on her purchases) to these defendants and others in payment of her husband’s debts — And she did not then set up any claims under said settlement. The defendants say that they were innocent and bona fide purchasers for valuable consideration, and ought not now to be disturbed in their rights, after so many years acquiescence, under pretence of an act of the legislature, which, if applicable at all, is ex post facto as to them; which was enacted long after the assignment of her bonds to the defendant.

Gen. C. C. Pinckney for complainant.

Pai'ol evidence admissible to explain a deed or to correct a mistake in it. 2 Atk. 383. 1 Ves. 457. 1 Bro. C. C. 92, 341. There was an evident mistake in the deed, owing to the alteration made by the interlineation in the deed, proved by the witnesses. One contingency failing, the next con - tingent estate takes immediate eifect in the remainder man. Although Mrs. Garner was present at the sale, this ought not to prevent her recovery, as she was not then conusant of her rights: And there are minors interested in the property. 1 Ves. 126. The trustees are not charged with any knowledge of Garner’s mortgaging *441any of the property. See 2 Powell on Contr. 205. 1 Powell, 131. 1 Vern. 136, 325. 2 Vern. 554, 599, 150. 1 Ves. 64. 2 P. Wms. 82.

ueoiw

Mr. Pringle, for defendant.

When an estate for life is limited to the ancestor, and to the heirs of Ms body, it is void as a remainder. Fearn. 342, 345. Courts of equity make no difference in the construction of legal and trust estates. 1 Ves. 133. 2 Ves. 646.

Mr. Ford, for defendant.

The creditors of Garner gave up judgments and mortgages, for Mrs. Garner's bonds given voluntarily by her for he? purchases. It is: ico lat e for her to set up the settlement, which neither she or her husband ever produced in his lifetime. On the contrary he mortgaged several of the negroes he got by her to Weston, and she sever interfered. And she even, made some payments on her bonds, for purchases of this very property long after her husband’s death. This wir a complete acquiescence, in sales made with her knowledge and privity. 2 Eq. Cas. abr. 684. 3 Atk. *754.*See 1 P. Wms. 132. 2 P. Wms. 754.

General Pinckney in reply.

Words which in a will would be construed a limitation, will in a marriage settlement be construed words of purchase; and the children take as purchasers. Fearn, 380. 1 P. Wms. 132. 2 *P.*Wms. 349. Heirs of the body in marriage settlements are construed as purchasers. Trusts are not construed as legal estates. Fearn. 82, 9, 95, 108, 112. In construing trusts the intention must he regarded, as in the construction of wills. See 2 Comyn, 170, 286, mistake, corrected. Ambler’s Reports, 251, 374. 1 Ves. 126, 457. 2 Vern. 659, 702.

M. Garner by settlement before marriage reciting that his intended wife was entitled (amongst other property) to certain negro slaves named in the deed, agreed that A. Evans, and W. C. Snipes, should be trustees; and hold the said negroes, on the following trusts; to permit Mm to work and employ the said negroes and receive their profits and earnings, to his own use, during tk term of his intended wife’s natural Míe; and from ami after her death (in case she should tlu;« be living) to per *442mit and suffer her, to take the earnings of said negroes to her own use during her life; and after her death in trust, to deliver up said negroes to the heirs of the body of said intended wife.*

The marriage took effect, and M. Garner is since dead, leaving his wife alive, and several children, who are complainants with her. His executors sold the whole estate, including the said negroes. The widow bought all the negroes (except three purchased by P. Weston) and gave her bond to the executors. This suit is to establish the marriage settlement, and to he relieved from the payment of the bonds. The executor in his answer admits the facts stated in the bill, but says he has assigned the bonds to the creditors of Mr. Garner, and has no control over them. P. Weston one of the defendants, answers that two of the negroes he purchased were mortgaged to Mm to secure a debt by Mr. Garner, in 1787; and he was ignorant of the settlement, which had not been recorded, according to law, and therefore is void as to him. But lie knew of the settlement at the time of the sale. Blake and Gregory (other defendants) say they were bona fide creditors of Mr. Garner, and had judgment and execution against him; and the bonds were assigned to them by the executor: And that they arc purchasers for valuable consideration, without notice of the settlement which was not recorded.

There are three questions, in this case. 1st. Whether the settlement not being recorded within the limited time, is not void as to creditors. 2d. What estate M. Garner took in the negro slaves under the settlement, whether an absolute estate or for life. 3d. If his creditors purchasing for valuable consideration without notice of tlie. settlement are affected by it.

The first point has been determined in a case in this court, by which it was decided, that the penalties of the act which was very badly penned, did not extend to set ilements made prior to tlie passing the act. In consc - *443quenee of that derision, the legislature, by an act in 1792, extended the time of recording old marriage settlements, and this settlement lias been recorded within the extend- d time: Indeed before the passing of the act extending the time. This settlement therefore is not a void hut a valid deed.

2d. It is contended for the creditors, that if this had been a settlement of real estate, Mr. Garner would have taken an estate tail under it, but being of personal estate, the absolute property vested in him, and became liable, to bis debts. Many cases were produced — They, relate, chiefly to trusts, under last wills; which are different from marriage settlements. 1st. Because these last are upon valuable consideration. 2d. They are, to be carried into execution, e\ on against parents. 3d. Were they to put the children completely in the, power of the parents, there would be no object at all in the marriage, settlements. Marriage, is the highest consideration; provision for the issue, is the. immediate object of settlements, and is intended as an effectual provision. The issue are purchasers for a valuable, consideration. In most of the cases cited, (except Jones *vs.*—--, 1 Eq. Cas. 392. 3 P. Wms. 359,) the. estate moved from the husband; hero from the, wife, and was only part of her property: the rest not settled. See the following cases—1 P. Wms. 132. 3 P. Wms. 32, Webb *vs.*Webb. 2 Vern. 43, 195, Peacock *vs.*Spooner. 2 Ves. 237, 646, 660, Garth *vs.*Baldwin.

The deed as it now stands is nonsensical (her death for his death.) It appears to have been originally drawn correctly; but it was altered by Mr. Garner, before the marriage, and if allowed to stand in that shape, would defeat the. provision for the wife,. If not corrected, the deed is inoperative as to the wife. It could not be the intent of the parties to make a settlement on the wife, of her own estate, from which she should derive no benefit. The court corrects errors and mistakes.- — It is its duty to do so. It must be done in this case, and the deed made to speak its original language (i. e.) to give the husband a life estate, with limitation to the wife for life: Then trustees to hold the negroes for the use of the, chil*444dren. The intent is plain. The trust is executed as to the husband and wife; executory as to the children. The act to be done by the trustees was to deliver them to the children of the wife. This shews clearly that the hus-. band and wife were to have only an usufructuary interest, and the property to he absolutely secured to the children. The court is of opinion that Mclcher Garner took an estate for life with remainder to the wife for life: and the limitation over to the heirs of the body of the wife, will rest the property in them at her death. All the property being originally the wife’s, and this being a case of marriage settlement, makes it a strong case in favour of the children, who are deemed purchasers for valuable consideration. And cases of marriage settlements are different from estates at law, or mere trust estates, which follow the law.

3d. Point. This case is so singular, that it is governed rather by its peculiar circumstances than by general rules. It is good law that if a person interested in an estate, suffer a disposal of it without notice of his claim *io*purchasers, the court will protect the purchaser; and where the trustee sells the estate without notice of the trust, the court will give cestui que trust relief only against the trustee. But there are no cases where the court refuses relief to persons ignorant of their rights; if they prosecute their claims soon after they became acquainted with them. In this case the cestui que trust applied to counsel soon after her husband’s death for advice on the settlement, and was told that not being recorded according to law, it was void. The executor of M. Garner also received same advice from counsel. In consequence the property included in the settlement was sold as part of his property. The question as to the validity of the settlements in that predicament was decided in 1792,18 months after the sale in this case, in the cause of Lenox *vs.*Gibbes. The complainant then became apprised of her rights, and instituted suit, but her bonds had been previously assigned to the creditors of her deceased husband, instead of Ins bonds which were given up to the executor. This is unlike all the cases cited. Mr. Garner mortgaged *445two of the negroes to P. Weston. There is no proof that this was done with the consent or privity of the tras-tees or complainants. P. Weston acknowledges that he knew of the settlement before the sale, therefore he is not a purchaser without notice. The court is of opinion that there was no such fraud, concealment or negligence of complainant, as should operate to her disadvantage. She and the executor acted under professional advice, on a point not then legally adjudicated, and which proved to he erroneous. Decreed that the bonds of Ann Garner the complainant be given up to her ant! cancelled, and that the mortgage to P. Weston being void, the negroes shall go to complainant. Executor to apply other funds of Melcher Garner, if any, to protect creditors, to whom he had assigned Ann Garner’s bond, so far as the same were given for property comprehended in the. settlement. What she bought in, really the property of her husband’s estate must be paid for. P. Weston to pay for the use of the negroes, and deducting taxes.

Costs to be paid out of M. Garner’s estate.

*

 The absurdity of the’ivording of the deed arose from some though* ■ (ess alterations of the deed, by M. Garner, after the deed ivas draivi:, The errors were corrected by the court