
    Parham vs. Parham, et als.
    1. Where a deed of separation and settlement was made, which provided that certain property should be vested in a trustee for the benefit of the wife, in lieu of maintenance, when, according to the agreement of the parties, it should have been expressed in the deed to have been in lieu of maintenance, dower and distribution, it is held that this was a mistake which should be relieved against in chancery. • '
    2. A marriage settlement made in lieu of maintenance, dower and distribution, is voidable at the election of the wife; yet, if she claims dower and distribution after the death of her husband, she must renounce the benefits of the deed. ' ■ "
    Sarah Turner, the widow of Simon Turner, intermarried with William Parham, in 1826. Each had some estate and children. In 1828, Parham executed a bond to Calvin Nicholson, in the penal sum of two thousand dollars, in pursuance of a verbal contract before marriage, that all the property of said Sarah, at the time of the intermarriage, consisting of slaves and some other moveable estate,, should, after the death of said Parham, or of the said Sarah, go to the children of said Sarah, to wit: Martha and David Turner. The parties lived unhappily together and separated, and some time after the separation, a deed of separation and settlement was executed by William Parham and sent to said Sarah,, which was also signed by her. This deed provides for the' separation of the parties from bed and board, and- conveyed “to David Turner for the use and benefit of Sarah, all the personal property owned and possessed by said Sarah at the time of the intermarriage with the said William,” consisting of slaves and other moveable property, “all valued at twenty two hundred and fifteen dollars.” Sarah agreed to accept the said property so conveyed “in full satisfaction of her support and maintenance and all alimony whatever, during her coveture. At the same time, Turner gave a penal bond of four thousand dollars to indemnify Parham against any debt of the said Sarah.
    William Parham died intestate in the county of Maury, in September, 1839, and administration was granted on his estate, and Sarah Parham thereupon filed her bills in the chancery court at Columbia against the heirs and distribu-tees and administrator of her deceased husband, for a distributive share of his estate, and against the heirs for dower. These bills were answered by the defendants, and a cross bill was filed by the heirs and distributees, setting forth and charging that the deed of separation was, by mistake of the attorney in drafting the same, so executed as not to express the intent and agreement of the parties executing it, in this, that it was agreed by and between the parties to the said tripartite deed, that the property conveyed to the said Turner in trust for said Sarah, should be accepted by her in “full satisfaction for her claim for support and maintenance during coveture, and for all claim that she might have to any distributive interest in any property which the said William might die seized and possessed of.”
    This cross bill prayed that said deed might be reformed and made to express the agreement of the parties, and that in the adjudication of the rights of the parties in controversy, the court would regard the stipulations of the parties as actually made, and fully intended by them to be expressed accordingly.
    The allegations of the cross bill were denied in the answer of the complainant, but were fully sustained by proof.
    The case was heard by chancellor Bramlett on bills, answers, replications and proof.
    The following decree will exhibit the grounds of the chan-chellor’s decision in the case.
    “Be it remembered, that this cause came on for hearing 28th day of March, 1843, before the Hon. L. M. Bramlett, chancellor, &c., upon the original bill, answer, exhibits, and replication thereto, and upon the cross bill, answer and replication thereto, and exhibits and proof in the cause, when it appeared to the court, that William Parham died in Maury county, Tennessee, in the year 1829, intestate, leaving complainant, his widow, and defendants his only heirs and distri-butees, and seized and possessed of a tract of land of 200 acres, lying on Carter’s creek, in Maury county, Tennessee, and possessed of personal property, the amount and value of which is not yet ascertained. It further appeared to the court, that the said William Parham and his said wife, the complainant lived separated and apart from each other, from the year 1833 to the time of the death of said William, and that while so living separate and apart, to wit, on the 6th of October, 1835, the said William and Sarah entered into a written contract of separation, by the terms of which the said William conveyed to David B. Turner, a son of the said Sarah, as trustee, certain property, consisting of three negroes, Anderson, Rhoda and Mary, together with hogs, cattle, household furniture, &c., which property was conveyed to said trustee for the use and benefit of the complainant during her life, and at her death to be disposed of as she might think proper, and in default of any disposition by her to go to her children, David B. and Martha Turner, by a former husband; in consideration whereof, the complainant accepted the same in full satisfaction for her support and maintenance, and for all alimony during coverture; and the court being of opinion that it was the intention of the parties to this article of separation, that the complainant was to accept the provision thus made for her in lieu of any claim for dower and distribution of the estate of said William; but the court being also of opinion that the complainant was not bound by said article of separation, nor by any stipulations therein contained, in consequence of her being a feme covert at the time the same was executed; it is therefore ordered and decreed, that the said articles of separation and the stipulations therein contained, so far as made and accepted by the complainant, are null and void. But, in as much as the court is also of opinion that the intention and purpose of the said William, as apparent on the face of the articles of separation, was to provide for complainant a support and maintenance in lieu of dower and distribution, the court is of opinion that complainant is not entitled to retain the said provision and also to dower and distribution, but that she ought to make an election. It is therefore ordered and decreed by the court, that complainant shall make her election, whether she will take her dower and distributive share in the estate of William Parham, dec’d, or whether she will abandon the same and retain the provision made for her by the said William by the said conveyance of the 8th October, 1835, and that she make the election and signify the same to the clerk and master by the May rules, 1843; and if no election should be made, or if she shall elect her dower and distribution, then the clerk and master shall proceed to make and state an account in which he shall charge defendants with the value of the personal estate which have come to their hands, with interest thereon from the time the same is received from the administrator of the estate, together with the value of the rents of the dower of the complainant in the 200 acres of land, from the death of the said William to the time of taking the account, and interest thereon; and that he charge the complainant with the value of the property conveyed by the said William on the 6th October, 1835, and its natural increase, estimating its value at the time of the death of the said William, together with hire on the negroes, and interest on the value of the other property not subject to hire, allowing her credit for such of the negroes or stock as may have died before the death of the said William, and for such of the other property as may have been consumed in the use. But if the complainant shall, by the May rules, elect to take the provisions made for her by the conveyance of the 6th October, 1835, in lieu of dower and distribution, then the clerk and master shall report that fact without proceeding to take the account, and that he make a report to the next term, until whieh time all other matters are reserved. It further appearing to the court, that the proof taken in this cause upon the cross-bill, is not sufficient to authorize the court to reform and correct the articles of separation, as prayed for in said cross-bill; it is therefore ordered and decreed that the cross-bill be dismissed, and that the complainants therein pay the costs of said bill, including the costs of depositions taken to show the errors in the articles of separation, and that execution issue, &c.
    
      “September 28th, 1843. — It appearing to the satisfaction of the court that the complainant, Sarah Parham, did not make any election as required in the interlocutory decree in this cause, made at the March term, 1843, by the May rules next thereafter, this court doth now order, adjudge and decree, that the complainant shall be regarded as electing to take her dower and distributive share in the estate of her deceased husband, William Parham, and that she shall account for the property settled on her, as required in said decree. It is therefore ordered by this court that said decree be revived, and that the clerk and master proceed to take proof and report to the next term of this court, upon the principles laid down in said decree; and it further appearing to the court that complainant should have her dower laid off to her, in the tract of 200 acres of land mentioned in the pleadings, it is therefore ordered, adjudged and decreed by the court, that a writ of dower issue to the sheriff of Maury county, to summon five freeholders of said county, unconnected with the parties by affinity or consanguinity, and entirely disinterested, and upon oath to be administered by said sheriff, shall lay off and allot to the complainant, Sarah Parham, one third part of the tract of 200 acres of land mentioned in the pleadings.”
    
      Wright, for the complainant.
    These are bills filed by Mrs. Parham, for dower and her distributive share in William Parham’s estate. That the articles of separation between her and her husband, even if so expressed and intended, do not bar her of either, is settled. She was then a feme covert and no contract executed as this is could deprive her of her rights. — Watkins vs. Watkins, 7 Yerg. Rep. 283.
    2. The only question of any difficulty here, is, whether the complainant must elect between her dower and distributive share, on the one side, or the property settled in the articles of separation, on the other; or, is the estate so settled in any event to be taken as a part of Mr. Parham’s estate? That the husband may, during coverture, settle property on his wife for any lawful purpose he pleases, is well settled. Though the wife cannot part with or bind her rights, he can his. And it is equally clear that the articles of separation in this case between Mr. and Mrs. Parham, and her trustee, are valid and binding in all respects upon Mr. Parham.— Carson vs. Murray, 3 Paige, 483. What then is the true construction and intention of these articles and the bond executed by David B. Turner? The chancellor thought they put Mrs. Parham to her election, and so decreed, and in this, we think he erred.
    The articles and bond only look to the support, maintenance, alimony and future debts of the complainant during her coverture. The fact that Mr. Parham was to provide for, or pay none of these, forms the consideration and only consideration of the articles. And to secure the husband against these, was the only object of the bond. When these things are accomplished, it has performed its office. The dower and distributive share of complainant did not enter into the agreement at all. She neither released, nor did the articles expect, or David B. Turner covenant that she should release these. And it is well settled that the dower or distributive share of the wife cannot be barred or she put to an election, unless the intention so to do is clear and evident. If the articles fall short of such clear intention, then the widow takes both the provision and what the law gives her. And such, we say, should have been the decree here. — Slatter vs. Slat-ter, 1 Young & Collyer Rep. 28, cited in 1 Harr. & Barbour’s Dig. 256,257; Colleton vs. Garth, 6 Simons, 19; 9 Cond. En. Ch. Rep. 149; Stewart vs. Stewart, 7 Johns. Ch. Rep. 229, 247, 248; Liles vs. Fleming, 1 Dev. Eq. Rep. 185; Hamrico vs. Laird, 10 Yer. Rep. 224, 225, 226; 4 Johns. Ch. Rep. 9; 6 Johns. Ch. Rep. 482, Swaine vs. Paine;
    3. But if complainant were, under other circumstances, forced to elect, there is, it seems to me, still another reason why the property received by her cannot be regarded as a part of Mr. Parham’s estate. It belonged to complainant before her marriage, and it was agreed between her and her husband that these slaves should, upon the death of either, belong to her children, David and Martha Turner, (Mrs. Vaughan.) This intention was carried out by Mr. Parham’s deed to Calvin Nicholson in February, 1828. These negroes then, at the death óf Mr. Parham, were the property of David B. Turner and Mrs. Vaughan. The articles of separation made afterwards only operated upon the life estate of Mr. Parham. How, then, can these slaves be regarded as any part of bis estate? Will the court charge complainant with that which may be taken away from her for want of title? Will her distributive share be paid in property other than the estate?
    The parol agreement recited in the bond to Nicholson, though void under our statute of frauds, is the case of a moral obligation upon Mr. Parham, and a, sufficient consideration to support the contract made after the coverture, and is of course binding upon all volunteers. The bond itself recites and is evidence of the ante-nuptial agreement. — Liles vs. Fleming, 1 Dev. Eq. Rep. 185; Argenbright vs. Campbell and wife, 3 Hen. & Munf. Rep. 144,183,184, 197.
    2. As to the cross bill, the defendants cannot profit by it. The case must be decided upon the true construction of the papers as they appear upon their face. As a general rule, parol evidence is never admissible, either at law or equity, to vary written contracts. The rule is the same in both courts — Wilkinson vs. Wilkinson, 2 Dev. Eq. Rep. 375. The cases of fraud, mistake, &c., are only exceptions to the rule. In the first place, then, it is neither alleged or pretended that there was any mistake in the bond to Nicholson; and if this is valid, then there is nothing to elect about, as these negroes do not belong to the estate of Mr. Parham; and the only object in correcting the pretended mistake being not to bar Mrs, Parham, but to force her to an election. In the second place, how can defendants file a bill to correct a mistake as to complainant? The whole contract is a total nullity as to her. She was a feme covert, and it is only through a contract with her trustee, that she can be forced to elect. If that contract, as made with the trustee, contain the proper terms, as in Watkins vs. Watkins, then she must elect, otherwise not. The bill, then, ought to be against David B. Turner. In the third place, there is still another reason why the mistake, if committed, cannot be corrected. Mrs. Parham was not present at the time of the contracts. She was in the Western District. The papers, as they are, were brought to and executed by her. There is no proof that she ever heard of or assented to any other contract, than the papers themselves disclose. Before any correction can be made, the mistake must be shown to have been mutual, the contracts one way, the agreements another. — Lyman vs. Unit. Ins. Com. 17 Johns. Rep. 372. Again: there is only one witness against the positive denial of the answer.
    5. But the decree, assuming the chancellor's principles to be correct, contains many errors. 1. It fixes the time of Mr. Parham’s death in September, 1839, and charges defendants with the value of the slaves received by them, and interest from that time upon that' value. But after charging complainant with the value of her slaves in like manner, it charges her with hire instead of interest, the former being greater than the latter. Perhaps the correct mode would have been to have assumed the time of the decree, (March, 1843,) and to have required complainant and defendants to account for the slaves in specie, deducting for deaths, &c., and charging hire since the intestate’s death, and then to have had them divided according to their value, &c. — Watkins vs. Watkins, 7 Yerger’s Reports, 283. 2. The complainant was charged too much for her slaves. 3. The decree is erroneous in turning complainant over for her distributive share to the other distributees. The decree should have been against the administrators and their securities in the bond. To these persons only was she bound to look. The distributees may prove insolvent.
    
      Nicholson, for the defendants.
    1. The articles of separation contain satisfactory evidence of the intention of the parties, that the property conveyed to the use of the wife, was to be in lieu of any other claim to any portion of the estate of her husband. This intention is fully manifested by the expression of the articles, “in full satisfaction of her support and maintenance.” The words, “for her livelihood and maintenance,” are sufficient to indicate an intention to bar dower. Clancy, 226, Buckingham-shire vs. Drury; 2 Eden, 68. The word “jointure,” of itself indicates the same intention. Clancy 226-7; 1 Ves. Senr. 55; vide also 3 Atk. 8.
    2. If there is any doubt as to the intention of the parties as expressed in the articles, the case made out under the cross-bill alleging a mistake in the preparation of the instrument will induce the court to reform the articles. Helm vs Wright and Graham, 2 Hump. 72; 3 Hump. 411.
    3. The provision made for the wife by the articles was the mere consummation of an ante-nuptial contract between the parties, but not reduced to writing. This ante-nuptial parol agreement was valid between the parties and will be enforced where there are no creditors.
    4. Where a settlement is made before marriage which was intended in lieu of dower and distribution and so accepted, the court will enfoi’ce it and not allow the widow to take the provision, and also the dower and distribution. Clancy, 219.
    5. It is immaterial whether the settlement was actually made before marriage, or whether there are only articles for a settlement, a court of equity will enforce the provision. Clancy, 220, 224; 1 Cox, 20. In the last cited case there was only a bond before marriage between the husband and the mother of his intended. After marriage the settlement was made in pursuance of the bond, and the widow was considered as having approved the arrangement and therefore was barred of dower.
    6. If the settlement is regarded as having been made during coverture, then the deed of settlement is construed in the same way as if made before marriage. Clancy, 231. And this settlement having been intended to be in bar of dower and distribution, the widow must elect which she will take; either the provision in the settlement or her dower and distribution. She cannot take both. Clancy, 230.
    7. An acceptance of the settlement by the widow by words in pais, or by entering upon the jointure lands will be an election, and consequently a bar'of dower or distribution. Clancy, 248. The election, however, to be binding, must be made with a knowledge of all the facts. Clancy, 249.
    8. If complainant elects her dower and distribution, she must account for the whole of the provision made for her, the negroes and other chatties.
   Turley, J.

delivered the opinion of the court.

The bill ’ of Sarah Parham is filed against Thomas Par-ham and others, to have her dower and distributive share allotted and set apart to her out of the estate of her deceased husband, Wm. Parham, who died intestate about the 2d day of September, 1839.

This right to dower and distribution is resisted in the answers of the defendants, and in the cross-bill, upon the ground that on the 6th day of October, 1835, the said Wm. Parham and Sarah Parham in consequence of differences between them in their social relations, agreed to a separation from bed and board, and in pursuance of this intention, a deed tripartite was made and executed between them and David B. Turner, by which Wm. Parham conveyed to David B. Turner, in use and in trust for Sarah Parham, all the personal property owned and possessed by her at the time' of her marriage, in full satisfaction of her support and maintenance; and all alimony whatsoever during her coverture. This property, consisting of negroes, hogs, cattle, beds and other household furniture, was taken possession of by the trustee, for the benefit of Sarah Parham, who thereupon separated from her husband, and continued to live apart from him till his death, upon the happening of which event, this property was reduced to her own actual possession, which she has retained ever since.

This it is contended operates as a bar to her right of dower and to a distributive share of the estate of her deceased husband. <

To this it is answered, that this bar cannot be made effectual for two reasons. 1st. That the deed of separation and settlement is void because Sarah Parham was a. feme, covert at the time of its execution. And, 2d, because even if it were good and valid, it was not intended, and is not a bar of her right of dower and distribution, but only in full satisfaction of her support and maintenance and alimony during her coverture.

To the 2d objection it is answered by the cross-bill, that the deed of separation and settlement was intended by the parties at the time of its execution, to be not only for her support and maintenance during her coverture, but in full satisfaction of any claim whatever, either by dower or distribution, upon the ' estate real or personal of her husband, and that it was by mistake of the counsel who drew the deed, that' it was not expressed to that purport, all which facts are satisfactorily proven.

1st. Is this deed of separation and settlement void on account of coverture as to the wife? Most clearly it is.. But it being so, she shall not be permitted to claim under and against it; if she set it aside as being void as to herself, it shall be held as inoperative against her husband; or in other words, if she take her dower interest and distributive share of his- estate, the property conveyed to her shall return to and constitute a part of the estate.

2d. Can she claim under the deed the property conveyed to her as being only given in satisfaction of her support and maintenance and alimony during coverture, keep it, and resort to the estate of her husband for dower and distribution. We think not; for though it be well settled that a conveyance by marriage settlement is not a bar to dower, unless it be so expressed, or be clearly inferable, yet this is where the settlement is before marriage and is a good and valid contract, which this is not. And we also think not, because it is satisfactorily proven, that the instrument of separation and settlement does not contain the true intention and meaning of the parties, the same being designed by all; to be in full satisfaction of any claim either of dower or distribution out of the estate of the husband, and that this intention was not expressed by reason of the mistake of the conveyancer who drew the instrument; this is such a mistake as a court of chancery will relieve against.

We are therefore of opinion with the Chancellor, that the complainant, Sarah Parham, cannot claim under the deed, and against the estate both, but must elect between them, and that as she has by this her suit elected to take her dower and distributive share of the estate, she must account for the property conveyed in the deed which has not been expended for her support and maintenance during her coverture.  