*Present*— Chancellors Mathews and Kutlebcl.

#### John Ward, administrator of John Wilson *vs.*Leighton Wilson, and K. Simons and wife.

SEPTEMBER, *1794.*

CASE XC11

DECREE BOOK, p. 155.

A marmge e.vci^of Alli-PTMPCW recorded tiie scribed by 1S tors; imi 1V *402wife shall be fromieVe<her agreement thetaUsettiement to give in* ^her^ín-*t*ended bus-lands; \nd tbe master to report a proper allow-mice for dower to the widow.

*401The bill states that after the death of John Wilson, the complainant administered on the estate, and possessed himself of the personal estate of the said intestate, except certain slaves named in a deed of settlement, a copy of which is filed with bill; which said slaves the complainant understood were secured by said deed to the sole use of Eleanor Simons, the widow of the said John deceased; hut who, since liis decease, hath intermarried *402with Mr. Keating Simons. ThattKc complainant hath not only exhausted all the credits of said intestate’s estate in discharge of the debts, but hath advanced considerable sums above tbe assets which have come into his possess*on* r^1£l* notwithstanding bis said advances, lie is still pressed for the payment of several other largo debts of equal degree with those which lie hath already satisfied, and which hy the rules of law and equity, ho will be bound PaJ *ln*average and proportion to the relative value of the estate of the said John Wilson at the time of his de-ceasc» an^ which will be greatly distressing to the complainant, as he will have no means of indemnity in his hands. That the said John Wilson also died, seized of certain lands, a list of which is filed with bill, over which P-nd the complainant hath no control, although he hath fJcen constantly obliged to pay largo sums for taxes; that he hath applied to Leighton Wilson, the nephew and heir Rj- ]aw- 0f the said John Wilson, deceased, stating the premises, and requesting that he would consent to the sale and apply the proceeds of said lands to the payment of the said intestate’s debts; and also to tbe said Keating and Eleanor since their intermarriage, to deliver up the said negroes claimed by them under the deed aforesaid, and which your orator is advised does not in law, and cannot in equity protect the said negroes from the payment of the said John Wilson’s debts, inasmuch as it is stated not tobare been recorded within the time prescribed by law; and he well hoped that they would have complied, as in justice and equity they ought to have done. The bill prays that the said lands may be ordered to be-sold for the benefit of the creditors of the said John Wil - son’s estate, and that the said Keating and Eleanor Sim - ons may be ordered to deliver up the said negroes with the issue of the females, ami that they may be sold and' disposed of Cor the benefit of the estate of the said John Wilson, deceased; and that the complainant may be relieved in tbe premises.

Defendant Leighton Wilson’s answer. Tbe defendant admits that the late John Wilson died intestate, and that the complainant obtained letters of administration on his *403estate; but lie neither admits or denies that the complainant has fully administered the estate and eSects *oí*his said intestate, and humbly «rays that the master «¡ay be direeled to eiupiire. lliereinto. The defendant also admito that the said John Wilson did die possessed of the lands described in complainant’s exhibit D; and that he hath been applied to *by*complainant to hare the same sold, hut being informed that the proceeds would be entirely and wholly applied to the payment of said John Wilson’.; debts, this defendant refused to intermeddle with the business. That he is ignorant of the nature of the deed mad 3 by the said John Wilson «in his marriage with the defendant Eleanor, now Eleanor Sinibus, or whether the. ne-groes named therein arc thereby protected from the payment of the late husband’s death. That he admits himself lobe the heir at law of the said John Wilson, deceased, and humbly prays that his interest in the lands may lie protected; or should it be deemed expedient to sell and dispose of said lands, or any part of them for the payment of said John Wilson’s debts, that the same may be sold on a reasonable credit, and the surplus money, if any should remain, be paid over to him.

The answer of Keating Simons and wife admits that the, said John Wilson died intestate, and that the complainant obtained letters of administration on his estate, and possessed himself of the personal estate, but not of the, negro slaves named in the deed of settlement, a copy of which is with the bill filed, which was in fact a settlement made of the defendant Eleanor’s own properly on her, previous to her intermarriage with the said John Wilson, and which secured the said negroes to her, on the event of her surviving the said John without iss ;c, which event has happened; and the. said deed did not comprehend anj part of the property of the said J ohn W ¡¡¡¡son, but contained a renunciation from her of all right to don er in his lands; and these defendants admit that the complainant always understood, as he in bill sets forth, that there slaves were secured by the said deed to the sole use anil behoof of the said Eleanor on the event above moni toned , and they humbly submit that fhoy were so scftuvd. That *404this was also the belief of the defendants, and in confer-iriity thereto they were never appraised as the property of the estate of the said John Wilson, and never were in the possession of his administrator the complainant. The defendant Eleanor for herself says, that she took posses-®on the said negroes shortly after the death of the said J. Wilson, and they continued uninterruptedly in her possession till her intermarriage with her present husband. Mr. Keating Simons, when they went into the possession of John Ball, appointed her trustee on her second marriage, and now remain in his possession. She denies that the complainant ever made any application to her during her widowhood for the delivery of the slaves, nor did she know that he had any idea of claiming them till after her marriage with the present husband; that she does not know positively when the settlement which was made previous to her marriage with the said John Wilson was recorded, but is informed it was about the 16th of August, 1P90. The defendant Keating Simons for himself says, that previous to his intermarriage with the defendant Eleanor, he know that the slaves in question had been secured to her by a marriage settlement, made previous to .her intermarriage with the said John Wilson, and that they remained in her possession; that he knew of no claim that existed against them, nor did he know or believe that they were liable to the payment of the said John Wilson’s debts; that under this impression this defendant by a deed made previous to his intermarriage with the defendant Eleanor, did make a marriage settlement, conveying the said negroes to certain uses contained therein, and which settlement lias been duly recorded; that he considers himself and humbly submits that lie is in fact a bona fide purchaser of those negroes for the most valuable consideration, and he humbly prays that he shall be protected in bis rights to them, and more particularly because all tbe debts duo by the said John Wilson were contracted long previous to his the'said John Wilson’s intermarriage with the said Eleanor, and not on the credit of the said negroes, and the said settlement- was not a secret one, but was no-ferious to the. said complainant and many others. They *405contend that in equity the said negroes cannot be made liable for the said John Wilson’s debts, as well for the reasons above mentioned, as because it appears by the exhibit A. that at the time the said John Wilson contracted with the said Eleanor before her marriage, that this property should he reserved to her in case of her surviving him without issue, he obliged her to contract on her part that she should have no dower in his lands, which, without she had entered into such contract, she would have been (notwithstanding his previous debts) entitled to; reserving thereby to Ms creditors all the property he. had, on the credit of which they trusted, and reserving to the said Eleanor on the event above mentioned only her own property; which contract these defendants submit is replete with equity, and should be carried into effect. And these defendants answering, say they know nothing of the accounts contained in the exhibit B. or with the particulars of the lands contained in the exhibit D. both with bill filed, and pray that they may be quieted in their right to said negroes; and the answer concludes in usual form.

The cause came to a hearing, and it appeared in evidence that the deed of settlement in question between John Wilson and his intended wife, previous to their marriage, of her property, was executed on the 1st of January, 1789, and was recorded on the 16th of August, 1790. That John Wilson was dead at the time it was recorded. The debts of Wilson were contracted chiefly before the settlement. Those after contracted did not exceed 1601.

Mr. John Ward contended that the deed of settlement not having been recorded within the time prescribed by our statute on that subject, was void as to creditors, and the property included in it liable to their demands against the husband. The law is peremptory in requiring the deed to be recorded within a limited time, and no excuse is receivable for the delay. Marriage settlements are not to be favored; they are. not adapted to our institutions and republican form of government.

Mr. E. Rutledge and general Pinckney for defendants, Mr. and Mrs. Simons,

contended that as the pro-*406pei'ty included in the settlement was wholly the wile’s, and as she actually agreed therein to renounce all claims (¡ower 0i. *0t}m.*interests in her intended husband's es-bate. she stood in the most favorable point of view; and the com t would, if possible, protect her, though the deed was not recorded in the prescribed time. She \\ as in reality a purchaser for the benefit of the creditors, who would obtain the benefit of the sale of Mr. Wilson’s lands, without any diminution by dower. The creditors in question never gave a credit to Mr. Wilson on the faith of this property, for they were all creditors before the marriage, except to a small amount. The settlement was generally known, and neither the administrator or creditors took any measures to question it for several years. The administrator did not even include the ne-groes in the appraisement of the estate. Tisis was an acquiescence which ought to be conclusive, as she has since married Mr. Simons, who, upon the faith of the property being in her possession, has made a new settlement thereof on his marriage with her, y hicli ought not to he disturbed. If the property included in the settlement is taken from her, it will be a peculiarly hard case on her, because in consideration of such settlement of all her property, she renounced all claims on her husband’s estate, and being of full age at the time, she will be bound by her agreement. It is a mistake to suppose that settlements arc anti-republican; they are quite the reverse, and ought to be- foe ored. Settlements take care that the property shall go equally among all the children; they prevent partiality, and bring back to that fairness and equah'ty the property Yhich, by the legal polity of a monarchy, was v csied in one child to the prejudice of the rest. Settlements produce a conformity to the laws of Home and others, where women had rights: not as according to the- English laws where, the woman’s existence is supposed to be annihilated. The counsel cited 3 Co. Rep. 59. Cro. Eliz. 473. 2 Bac. 140. 3 Atk. 8. 2 P. Wms. 243. 1 Atk. 439. 2 Vern. 274. 4 Bacon, 645.

Chancellor Mathews

delivered the decree of the court:

*407It will be. unnecessary for ns to follow tbc counsel through the wide field of argument they have gone into in this cause. We think the whole case is reducible to a single point, that is, whether the neglect of recording the settlement made by 'Wilson on his marriage with one of the defendants, now Mrs. Simons, will be fatal to such settlement or not; and this must altogether depend on the construction to be given to the law of 1785, and that of 17C~, made for the amendment afilie former. The first clause of the latter law only provides against the defect of the first clause of the first law. The second clause' enjoins certain things to be done after the passing thereof, and takes not the bufet notice of such settlements as were made between tbc passing of the first and second law; and the proviso, which is 1 he last clause, is prospective, and in no part retrospective. From hence we must conclude, that as the legislature from their review of tin-law of 1785, thought proper to explain or amend only the first clause of that law, because it was *“*defective and inadequate to remedy the mischiefs thereby neccfsnry to be provided against,” and have observed a profound silence with respect to the. second clause, that they were satisfied that the second clause of that law which comprehends the- cases of settlements made between the passing of the one end the other law, was adequate to the purposes of Its original intention, audleU it to its fail operation. We must therefore consider ourselves bound to construe the i cmaining part of that iiw according to what was 'their intention, however inaccurately it is expressed. From 1 his vie-v; of the subject, it would neither be decent nor allowable in us to ray that the law of 1735, might have been made morí', dear and comprehensive, than if is. The legislature have thought it sufficiently obligatory as it stood on those who came within its intention, either to conform thereto, or subject themselves to the penalty thereby to be incurred. As liso ('ase. now before us is clearly included in the second clause of the law of 1735, the settlement having been made since the passing of that law, and not being recorded within the time therein limited, the penalty oft he law is thereby incurred, and It i.; no1 pcs Able for this *408court to apply any remedy. On the contrary, we are of opinion that the settlement under that law has become forfeited, and must be liable to the debts of Wilson, the former husband of the defendant, Mrs. Simons. As to the defendant, Mr. Simons, her present husband, having also made a settlement of the same negroes included in the first settlement on his marriage, without any notice of the claim of Wilson’s creditors on them, they not having been returned in the inventory of Wilson’s estate, that he is thereby become a fair purchaser, and ought not to be divested of the negroes contained in the said marriage settlement, we cannot place him in a better situation than Wilson would have been. The negroes were forfeited in Wilson’s life, and were subject to his debts. The law does not point out any time when the creditors are to demand the forfeited property, and it does not lay with us to animadvert on their indulgence to their debtors by not demanding it sooner; but as the property has once been forfeited by the law, we cannot restore it. Yet, as the negroes might have been demanded sooner, and Mrs. Simons was permitted to retain them in her possession, under an im • pression that they were her property, we think the law gives us so far a discretionary power, as to say that the creditors have no claim to any compensation for the work and labor of the negroes. They had a right to demand them immediately, and if they neglected to do so, it was their fault. We therefore think it would be unjust that she should incur a double penalty.

The cause of Lennox *vs.*Gibbes determined in this court, must be the case referred to by the preamble to the law of 1792, as no other had been previously made, and that decision was upon the first clause of the act of 1785. But as the case before us comes under the second clause of that law, the two cases are materially distinct; and for reasons already given, must be subject to different constructions. There can be no doubt about the sale of the lands.

It is therefore decreed, that the negroes in the marriage settlement contained, with their issue and increase, be delivered up to the complainant, the administrator of *409Wilson, to be applied to the payment of bis debts. That the lands be sold by the master on a credit of one year, and the securities therefor be by him delivered over to the complainant, the administrator. But as from the forfeiture of the maiTiage settlement, the late widow, now Mrs. Simons, is restored to her right of dower in her former husband Wilson's lands, that the master do report what will be a proper allowance for her dower, if she chooses to take, such compensation,* otherwise that commissioners be appointed under the direction of this court, to assign to her her dower in the lands.--'And that the costs be paid out of the estate.