
    *Perkins’ Trustee v. Dickinson & Co.
    October Term, 1846,
    Richmond.
    Husband and Wife — Deed to Trustee — Enjoyment of Property by Husband — Debts of Husband. — Prior to the marriage of P„ who was then insolvent, with F., F. executed a deed, by which she conveyed property of her own to a trustee, upon trust that P. during their joint lives, should take and enjoy all the interest and profits thereby conveyed, to and for his own use and benefit; but that neither the property conveyed, nor the profits thereof, should be liable to be taken by process of law to pay any of P.’s debts, due, or thereafter to become due, either previous to or after the said marriage. The deed further provided that if Mrs. P. survived, the property should be conveyed to her; if P. survived, he should enjoy it for his life, exempt from the payment of his debts. And Mrs. P. was authorized to dispose of the property, notwithstanding the coverture, either by deed or will, to take effect on the death of P. On a bill filed by a creditor of P. to subject the profits of the property.' Held.
    1. Same — Same—Same—Same—Construction of Deed —Intention of Parties. — That a Court of Equity will so construe the” deed, consistently with its terms, as will give effect to the leading intent of the parties. And this intent was to secure the enjoyment of the property to the intended wife and her family, including the husband, free from the claim of his creditors.
    2. Same — Same- Same — Same—Same— Same. -~r That taking the whole instrument together, it provides that the husband and wife shall enjoy the interest and profits of the property jointly during their lives.
    3.Equity Jurisdiction — Mistake of Draftsman.— That if, owing to want of skill, or mistake in the draftsman, the deed has failed to carry out the clear intent of the parties, as manifested on its face, a Court of Equity, looking to the fact of the intended husband’s insolvency, will not interfere and defeat the clear intent of the parties, by sequestrating the profits; but will leave the creditor to his legal remedies; if any he has.
    This was a bill filed by Dickinson & Co. in the Superior Court of Henry county, to subject the profits of certain trust property to the discharge of a judgment obtained by them against William Perkins.
    Prior to the marriage of Perkins, who was then and continued to be insolvent, with Mrs. Martha H. Fontaine, the parties executed a deed, by which Mrs. Fontaine ^conveyed certain property of her own to a trustee, upon trust that Perkins, during the joint lives of himself and his wife, should take and enjoy all the interest and profits thereby conveyed, to and for his own use and benefit: but that neither the property conveyed, whether real or personal, nor the profits nor interest arising from the same, should in any manner be liable to be taken by process of law to pay any debt of Perkins’ due, or thereafter to become due, either previous to or after the said marriage.
    The deed further provided that if Mrs. Perkins survived, the property should be conveyed to her; if Perkins survived, he should enjoy it for his life, exempt from the payment of his debts. And Mrs. Perkins was authorized to dispose of the property, notwithstanding the coverture, either by deed or will, to take effect on the death of Perkins.
    The bill charged that Perkins concealed the profits of the property, so that they could not be taken to satisfy his creditors; and the plaintiffs therefore asked the interposition of the Court.
    William Perkins answered, saying, that at the time of his marriage he was greatly embarrassed, and unable to pay his debts: that Mrs. Perkins was then fully a'pprised of this fact; and it was her purpose to protect her estate for her own use, against his debts, by the deed which she then executed : and he insists, that by the true construction of the deed, the property is protected. He further answered, that he was a discharged bankrupt, and exhibited an attested copy of his discharge.
    When the cause came on to be heard, the Court made a decree placing the trust property in the hands of a receiver; and directing him out of the issues and profits thereof, to pay off the plaintiffs’ debt; and then to restore the property to the trustee. From this decree, Mrs. Perkins’ trustee applied to this Court for an appeal, which was allowed.
    
      *Eyons, for the appellant.
    Patton, for the appellees.
    
      
      Husband and Wife — Joint Property — Husband’s Debts. — In Perkins v. Dickinson, 3 Graft. 335, it was held that an equitable interest of husband and wife, held jointly under a deed made before marriage, should not be subjected to the payment of the husband’s debts. In this connection the principal case is cited in Summers v. Bean, 13 Gratt. 422: Armstrong v. Pitts, 13 Gratt. 243; Nixon v. Rose, 12 Gratt. 429; French v. Waterman, 79 Va. 625; Nickell v. Handly, 10 Gratt. 342, 347; Brooks v. Raynolds, 59 Fed. Rep. 938. See foot-note to Nickells v. Handly, 10 Gratt. 336, and monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
      In Scott v. Gibbon, 5 Munf. 86, an equitable interest of the husband held jointly with his wife under a deed of marriage settlement, was held not liable for the husband’s debts; the separate interest of the husband created by the deed was held liable to the creditor. To the same effect, see Roanes v. Archer, 4 Leigh 550, and Coutts v. Walker, 2 Leigh 268.
    
    
      
      Same — Bare Maintenance to Grantor — Provision against Liability for Husband’s Debts. — It was held in Johnston v. Zane, 11 Gratt. 552, that a settlement which gives to the grantor a bare maintenance with his wife, for his life, and provides that the property shallnotbe subject to his debts thereafter contracted, does not vest him with such an interest in the property as can be subjected to satisfy such after-contracted debts. The court on p. 570 said; “The case is fully within the principles of several cases which have been decided in this court, and which may be regarded as settling the law upon the subject. Scott v. Gibbon, 5 Munf. 86; Markham v. Guerrant. 4 Leigh 279; Roanes v. Archer, 4 Leigh 550; Perkins v. Dickinson, 3 Gratt. 335.”
      In Markham v. Guerrant, 4 Leigh 279, a husband conveyed property in trust for the support of himself and wife and children.- The husband, without the assent of the trustee, contracted a debt, and his creditors sought to subject the property of the trust subject to the payment of their demand. It was held that the husband could not directly or indirectly derange the plan of the trust, and thereby affect injuriously the interests of his wife and children, the other cestuis aue trust.
      
    
    
      
      Equity Jurisdiction — Distake of Draftsman — Intention of Parties. — The principal case is cited in Lough v. Michael, 37 W. Va. 682, 17 S. E. Rep. 182. See footnote to Alexander v. Newton, 2 Gratt. 266.
    
   ALEEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the deed of settlement in the proceeding's mentioned, having been made in contemplation of marriage between a single woman, and her intended husband, who was, as is alleged in the bill, at that time insolvent, and embracing the property of the intended wife alone, and providing that neither the property or the profits or interest arising therefrom should be liable for the debts of the intended hubsand then due or thereafter to be contracted or become due, should in a Court of Equity receive such construction, consistent with the terms of the deed, as will effectuate the leading intent of the parties. The leading intent of the deed was to secure the enjoyment of the property to the intended wife and her family, including the husband, free from the claim of his creditors; and therefore all idea of a property in the intended husband, in and to the settled subject, during the coverture, is excluded by the express terms of the deed. Consequently no right was acquired, nor is any pretended, to seize or sell the subject itself, by virtue of the judgment and execution in the proceedings mentioned.

The Court is further of opinion, that taking all the provisions of the deed together, the clause that the intended husband should take and enjoy the interest and profits to and for his own use and benefit during the joint lives of himself and wife, controlled as it is by the provision exempting such profits and interest from all liability for his debts, and the other considerations before adverted to, is equivalent to a provision that they should enjoy the interest and profits of the property settled, jointly during their lives.

The admitted insolvency of the intended husband, the fact that the property settled was the sole property 'x'of the wife, and the express provision exempting the profits as well as the property from the debts of the intended husband, shew clearly that it was intended to secure the enjoyment of the profits during the cov-erture, for the maintenance of the wife and her family, including the husband, and not merely to secure the property itself in remainder.

The Court is further of opinion, that even if the terms of the deed, owing to want of skill, or mistake in the draftsman, should have failed to carry out the clear intent of the parties, as manifested on the face of the deed, coupled with the admitted insolvency of the intended husband, those circumstances furnish a sufficient reason for the refusal of a Court of Equity to interfere and defeat the clear intent of the parties by sequestrating the profits ; and for leaving the creditor to his legal remedies, if he has any, to pursue such profits after they shall have been actually received by the husband.

On these grounds, and without noticing the objection arising out of the bankrupt law, the Court is of opinion to reverse the decree with costs ; and proceeding to render-such decree as the Court below should have done, it is adjudged, ordered, and decreed that the bill be dismissed, but without costs, and without prejudice to any proceedings the appellees may at any tim,e institute, for the purpose of charging any contingent interest of the said William Perkins sen’r, arising under the deed aforesaid.  