
    Eli C. Douglass vs. J. T. McAfee and others.
    
      Marriage Settlement.
    
    H., a widow, having three children, and being about to intermarry with M., she and M. executed a marriage contract, by which, after reciting that it had been agreed that M. should settle upon the three children of H. one moiety of her estate, and that the other moiety should become his proper estate, “'subject to such provisions as are hereinafter expressed,” he, M., agreed to stand seized and possessed of one moiety of H.’s estate in trust, for her three children ; and it was agreed, that the second moiety should become M.’s “proper estate, subject to his sole control and disposal, and yielding him its profits without impeachment of waste, and subject only to the proviso, that if the said M. and H. have less than three children, that there shall be reserved out of second moiety the same amount only for each child of M. and H. as each child receives that is mentioned in division of first moiety, viz.(naming the three children of II.) “then tlxo balance, if any, to be divided equally among all the children at the death of said H. And if the said M. shall die without issue living upon the body of H. begotten, then said estate shall revert to H. if she bo living, and if she be not living that the same shall , descend to the aforementioned children of H. ” H. died, leaving her said three children and M., and two children by M., suiviving her Held, that M. was entitled to a life-estate only in the second moiety of the estate; that upon the death of H. her two children by M. became each entitled to a vested interest in one-third of said moiety, and all five of the children to a vested interest in the remaining third, the interests of the two children by M. being liable to be defeated by the deaths of both before M., leaving no issue of either surviving, in which event their interests were to go over to the other children.
    BEFORE OARROLL, OH., AT CHESTER, JULY, 1861.
    Tbis case will b.e sufficiently understood from the circuit decree, and a copy of the marriage contract referred to therein.
    The circuit decree is as follows:
    Carroll, Ch. Mrs. Hannah Douglass, a widow and mother of three children, intermarried with John T. McAfee, in 1848, and departed this life in December, 1855.' By her marriage with McAfee she had issue, three other children, one of whom, Edward M. McAfee, died in her lifetime. Her husband McAfee and her remaining children, five in number, „ have survived her. At the date of her last marriage, she was entitled to an undivided interest in the estate, real and personal, of her deceased father, Eli" Cornwell, who had died intestate. Immediately before her marriage with McAfee, and in contemplation of it, she joined with him in executing a written instrument under seal, for the settlement of her portion in her father’s estate upon certain trusts and limitations therein specified. The plaintiff is the eldest child of the first marriage, and, having attained his majority, exhibits his bill for an account of the estate comprised in the marriage contract or settlement, as also to have his proper portion of the same declared and set off by partition.
    The controversy between the parties relates to their respective interests in the property embraced within the written instrument referred to. On the part of the plaintiff the claim is, that he is entitled to a third of one moiety, and, in addition, to a fifth of one-third of the other moiety, making his interest equal to a fifth of the whole property. The defendant, John T. McAfee, admits that the children of the first marriage are entitled to a moiety, and to be put in possession of their several portions of the same upon their respectively attaining the age of twenty-one years. But he contends that they took no further interest, and his children by Hannah Douglass no interest at all, because there were then children born of his marriage with her, and that the one moiety of her property is by the instrument in question conveyed to bim as bis absolute estate, to be divested, if at all, only in tbe contingency of Ms dying without issue living of that marriage.
    The limitations of tbe intended wife’s estate, under the 
      instrument of writing referred to, seem to belong to tbe class of executory and not executed trusts. 2 Jarm. 253.
    The moiety of the estate designed for the children of the first marriage they take, not immediately under that instrument, but by means of it, in connection with a further act to be done by John T. McAfee. So far as that moiety is concerned, it amounts to a mere covenant on his part to stand seized and possessed of and to hold the same in trust for them, when it shall have come into his possession by virtue of his proposed marriage. But the contest between the parties relates to the remaining moiety.
    As to that, the instrument in question stipulates merely that "it is understood and agreed that such moiety shall, after the marriage,” be the proper estate of John T. McAfee, subject to certain conditions and limitations therein _ afterwards expressed. There is no transfer or conveyance made to J. T. McAfee of the legal title, nor is there any declaration of trust proceeding from her that she stands seized and possessed upon the trusts therein indicated.
    The whole rests merely in covenant or agreement. If, as the deed recites, there were in fact “articles of agreement” between the parties for such settlement, the undertaking to carry them into execution had been already assumed. The superaddition of another undertaking of like import was no advance whatever towards completion of the trusts. In truth, the deed, as to this portion of it, purports in terms, to be a mere recital of so much of the articles of agreement referred to.
    If the trusts indicated by the latter were executory in their nature, so also must be those manifested by the former.
    Though the trusts set forth in the deed were regarded as in their nature executed trusts, yet it may be doubted whether they would not be held subject to the rules of construction applicable to trusts executory. The deed purports to be made “ in pursuance and performance of the articles of agreement,” which it recites. Such reference to the marriage articles is held to show “the intent of the parties to be still the same as at the making of the articles.” West vs. Erifrey, 2 P. Wms. 319 ; Legg vs. Goldwire, 1 "White’s Lead. Oas. 27.
    In carrying into effect the trusts expressed in marriage articles the Court resorts to much latitude of 'construction. Gaillard'irs. Porcher, McM. Eq.-358; Randal vs. Wallis, 5 Yes. 261; Allen vs. Rumph, 2 Hill’s Ch. 3 ; Smith vs. Maxwell, 1 Hill’s Ch. 105.
    One of the leading objects of marriage articles is usually to. provide for the issue of the marriage. The very nature of the instrument raises a presumption of intention in favor of issue. 2 Jarm. 262; 1 White’s Lead. Cas. [Note] 19, ■and authorities there cited. In Hill on Trustees, 328, it is said that, “ unless the contrary clearly appears, equity presumes that it could not have been the intention of the parties to put it in the power of the parent to defeat the object of the settlement by appropriating the whole estate.”
    The instrument in question it is conceived cannot be understood in its literal sense. If so interpreted, it would present a confused group of incongruous and conflicting provisions.
    In the judgment of the Court, all the children of Mrs. McAfee must be held entitled to an interest in what is tehned the “ second moiety” of the property comprised in the marriage contract or settlement. The terms descriptive of the estate that J. T. McAfee was to have in that moiety, seem to imply that the issue of the marriage were regarded as having-some interest also in such moiety, and that his possession of the same would be in some sort fiduciary. It is the form of description that would naturally have been adopted if the parties had been carving out, of what was designed to be a trust-estate, a partial and limited interest for the trustee personally. The estate he is to take, it is stipulated, shall be “subject to his sole control and disposal, and yielding to him its profits, without impeachment of or for any manner of wastesuch stipulations seem to impart a consciousness that, without them, there were other parties who might claim to participate in the control and disposal of the property, who might demand an account of the profits, and who being entitled to the ulterior estate might hold him responsible for acts of waste. Still more significant is the provision which immediately succeeds: “ that if the said J. T. McAfee and Hannah Douglass, by their marriage, have less than three children, there shall be reserved but of the second half or moiety the same amount only for each child of J. T. McAfee and Hannah Douglass as each child receives that is mentioned in division of first half or moiety, then the balance (if any) to be divided equally among all the children at the death of said Hannah Douglass.” No new or additional interest is conferred upon the children of the second marriage by this provision. Its effect is the very reverse. It recognizes an interest in them as already subsisting, and diminishes it. If in the event specified there was to be reserved for them respectively out of the second moiety the same amount only as each child of the first marriage receives in the division of the first moiety, the strong implication is that, in the absence of this provision, the whole of the second moiety was intended to have been reserved for them. The plain purpose of the provision in question was not to create an estate for the children of the second marriage, but to regulate its division if their number were less than three, by admitting into its participation the childreu of the first marriage in such proportions as would produce equality among them all in the division of the whole estate.
    A more doubtful question, and perhaps the most embarrassing in the cause, relates to the quantity of the estate taken by John T. McAfee. Is it to continue for the period of his own life, or is it limited only to the lifetime of his wife? The construction suggested on his behalf is wholly inadmissible. It would exhibit this strange result, that if there were issue born of the marriage, three in number, his interest in one moiety would be an estate in fee. But if such issue were less than three, then his estate would be restricted to the lifetime of his wife, while at the same time, if there had been no such issue at all, it would have been extended throughout the period of his own life. Dispositions so strangely capricious could not have been intended by the - parties.
    It is apprehended that the estate carved out of the property for the husband was designed to be one and the same, if there was issue of the marriage, without regard to their number, whether three or less. The limitations last in order seem to assume that he continues in possession of the whole moiety after the death of bis wife and up to his own decease, although there should be issue of the marriage, if such issue fail in his lifetime. This would seem to preclude a division among the children prior to his death. There is nothing in the instrument which appears to contemplate a divesting of the husband’s interest, with a contingent revesting of the same. It could scarcely have been intended that at the death of the wife, the issue of the marriage being less than three, and the husband surviving, there should be a division among all the children, with the right on his part, upon failure of issue of the marriage afterwards in his lifetime, to reclaim into his possession and retain to his death the portions not only of his own children, but those also of the children of the first marriage. On the contrary, the division among the children seems to have been the final and ultimate disposition contemplated.
    The children are held to have taken in subordination to an estate carved out for the husband during the term of his own life. It is apprehended that those who are to participate after the husband’s death in the division of the moiety in which he takes a life-estate, are the children that were in existence at the death of the wife. In the provision that the " balance, if any, be equally divided among all the children at tbe death of said Hannah Douglass,” the words referring to her death may be construed as indicating not the date at which the proposed division is to occur, but the time at which , are to be ascertained the objects'who are to participate in that division.
    There are objections, undoubtedly, to the construction adopted, but upon the whole it is conceived to be the nearest approximation attainable to what seems to have been the intention of the contracting parties.
    The matters of account have been already referred to the Commissioner, and no further order in that behalf is deemed requisite.
    It is adjudged and decreed that the plaintiff and his brothers of the whole blood are entitled to have partition thereof made among them, the portions of such of them as are infants to be retained, however, by the defendant, J. T. McAfee, until they respectively attain the age of twenty-one years.
    It is further adjudged and decreed that the defendant, John T. McAfee, is entitled to the other moiety of said estate for and during the term of his natural life, with remainder to the five surviving children of his late wife, Hannah McAfee, to be divided among' them in the proportions specified in the said marriage agreement or settlement, subject, however, as to the portions of the children of the said John T. McAfee and Hannah McAfee, to the limitations over which said marriage agreement or settlement prescribes, in the event of the said John T. McAfee’s dying without issue living of his marriage with the said Hannah.
    And it is further ordered that a writ of partition issue, under the direction of the Commissioner, to divide the visible estate comprised in said marriage agreement or settlement between the said J. T. McAfee and the children of his late wife, Hannah, by her former marriage, and to subdivide the moiety to be assigned to the latter among them, according to tbeir several rights and interests, as hereby adjudged: Provided always, that nothing herein contained shall in anywise prejudice the right of said John T. McAfee to have satisfaction out of said estate in respect of the claims and demands set up in his answer as charges against the same.
    copy op marriage contract.
    “State op South Carolina, Chester District:
    “ This indenture of proposals, made this 6th day of September, in the year of our Lord one thousand eight hundred and forty-eight, between John T. McAfee, of said district and State, of the one part, and Hannah Douglass, widow, of said district and State, of the other part:
    “ Whereas a marriage is intended to be shortly had and solemnized between the said John T. McAfee and the said Hannah Douglass. And whereas the said Hannah Douglass is entitled to a considerable estate, both real and personal, in her right as a distributee of the estate of her father, Eli Cornwell, Sr., late of said District, deceased. And whereas, upon the treaty of the said intended marriage, it was agreed by and between the said parties that, previous to the solemnization thereof, the said John T. McAfee would relinquish to and settle upon the children of said Hannah Douglass, to wit, Eli C. Douglass, James Douglass, and Robert George Douglass, who are yet minors, the one-half part or moiety of such estate, real and personal, as by right of said Hannah Douglass, as distributee aforesaid, and by virtue of said marriage, shall come into the hands of said John T. McAfee, and that the other half or moiety of the said estate of Hannah Douglass shall become the proper estate of said John T. McAfee, subject to such provisions as are hereinafter expressed:
    “Now this indenture witnesseth that, in consideration of said intended marriage, and in pursuance and performance of the said article of agreement, the said John T. McAfee doth covenant and agree to stand seized and possessed of, and to hold in trust for the said children of said Hannah Douglass, to wit, Eli 0. Douglass, James Douglass, and Eobert George Douglass, the one moiety or half part of all such estate, real or personal, as by right of said Hannah Douglass as distributee aforesaid, and by virtue of said marriage, shall come into the possession of said John T. McAfee; and it is further understood and agreed, in consideration of the profit arising from the said moiety so held in trust for said children, the said J. T. McAfee shall furnish due maintenance and support to each and all of said children until they respectively attain the age of twenty-one years, or marries, providing for them such food, clothing, shelter and medical attention as may be by each and every of them ordered and required; giving to each and all such schooling and education as may fit them for usefulness in life, and in all respects doing for said children as though they were the proper children of the said John T. McAfee.
    “And it is further covenanted and agreed, that as each of said children shall respectively attain the age of twenty-one, or in case they marry before that age, the said John T. McAfee shall duly pay or cause to be paid to him so coming of age or marrying, the proper part or portion of said moiety so held in trust, to which he may be entitled: Provided always, that if either of said children shall depart this life before he shall attain the age of twenty-one years, then the part or portion of said moiety that would have accrued to him so dying shall go and accrue to the others or other of said children or child, in the same manner as their or his original portions or portion; and providing further, that if all of said children should die before attaining the age of twenty-one years, then the said moiety so held in trust for them shall remain in the hands of said John T. McAfee, in the same manner, and subject to the same conditions and provisions as are hereinafter imposed with respect to the other moiety of the estate of said Hannah Douglass.
    “And it is further understood and agreed that the other moiety of the estate of said Hannah Douglass shall, after the solemnization of said marriage, be the proper estate of said John T. McAfee, subject to his sole control and disposal, and yielding to him its profits, without impeachment of or for any manner of waste, and subject only to the proviso herein declared and expressed concerning the same, to wit, that if the said John T. McAfee and Hannah Douglass by their marriage have less than three children, that there shall be reserved out of second half or moiety the same amount only for each child of John T. McAfee and Hannah Douglass as each child receives that is mentioned in division of first half or moiety, viz., Eli 0., James, and Eobert George Douglass, then the balance, if any, to be divided equally among all the children at the death of said Hannah Douglass.
    “And if the said John T. McAfee shall die without issue living, upon the body of said Hannah Douglass begotten, then said estate shall revert to the said Hannah Douglass if she be living, to become her own proper estate, subject to her absolute control and disposal; and if she be not living, that the same shall descend to the aforementioned children of said Hannah Douglass.
    
      “ And it is further understood and agreed that said Hannah Douglass shall relinquish all claim to dower or distributive share of any part of the proper estate of said John T. McAfee in case she shall survive him.
    “In testimony whereof the said John T. McAfee and Hannah Douglass have hereunto set their hands and seals, this 6th day of September, in the year of our Lord 1848.
    “JOHN T. McAEEE. [l. s.]
    “HANNAH DOUGLASS, [l. s.]”
    The plaintiff appealed, and now moved this Court to reverse tbe decree of his Honor, in the following particular, and on the following ground, to wit:
    Because the Chancellor erred in holding that the said J. T. McAfee was entitled for life to the second moiety of the estate of his deceased wife, and that the same is not distributable among the children of his late wife until his decease; whereas by the said marriage agreement it is plainly stipulated that, out of the said second moiety, the issue of the marriage, if less than three, shall each receive the same amount as the plaintiff and his two brothers receive out of the first moiety, and that the balance of said second moiety shall be equally divided among the children of his said wife at her decease.
    The defendant, John T. McAfee, also appealed, and now moved this Court to reverse the decree of his Honor, on the ground:
    Because the Chancellor erred in holding that the said John T. McAfee was only entitled to a life-estate in one moiety of the estate of his deceased wife; whereas by the terms of the marriage settlement between them, the said defendant is entitled to one-half of all said estate in fee simple, subject to be diminished upon certain conditions, which have wholly failed.
    
      McAUly, for plaintiff
    
      Hemphill and Melton, contra.
   The opinion of the Court was delivered by

Inglis, J.

The difficulty, so familiar to bench and bar, of giving a satisfactory construction to wills and marriage settlements, is a mortifying illustration of the insufficiency of human forethought to anticipate the varying circumstances of life, or of human language adequately to express the purposes by which the exigencies of its changing phases are to be met. The Chancellor, who heard this cause below, seems to have felt that the effort of Hannah Douglass, before her contemplated intermarriage with J. T. McAfee should put her lately descended patrimony beyond her own control, wisely to distribute it among the objects of her affection, has not escaped this infirmity. With this feeling we cannot fail to sympathize. It seems scarcely possible to adopt any interpretation of the instrument which embodies this effort, which shall, at the same time, give literal effect to all its terms, and fulfil the ends which alone it can be reasonably considered to have'proposed. The first aim certainly was to divide the beneficial enjoyment of the property at once in equal shares between the family of young children which she already had as the fruit of her former .marriage, and the husband who, in her hopes, was about to become the stock of a new issue. It seems equally clear that while, as to the moiety which was left to the new husband, his beneficial use and enjoyment of the same, so long as his possession was authorized to continue, was not to be in anywise restricted or controlled ; yet the prospective issue of her union with him were not left dependent upon, his mere pleasure for their succession at the termination of this possession, but were direct objects of her care and bounty.

The particular question which it is necessary now to decide is, what portion of the property embraced in the terms of the contract exhibited with the bill, Eli C. Douglass, the eldest of the three children of the first marriage, having attained his majority, is now entitled to demand and have from his stepfather, J. T. McAfee. In determining this question, the Chancellor has found it requisite to give a judicial exposition of the whole instrument so far as to ascertain the extent.of the interest taken by all the parties under it, and the time of enjoyment of their several shares. The appeal on each side disputes tbe correctness of his exposition. That Eli C. Douglass is now entitled to be let into the possession and enjoyment in severalty of the one-third part of the first •moiety, and that each of his brothers of the whole blood, upon attaining majority, will be entitled to a like part, is not questioned. The contest is as to the second moiety. The whole scheme of the contract as to this moiety requires that the possession and enjoyment thereof by the husband and father, J. T. McAfee, shall not be disturbed during his life. His death is certainly the event which is finally to ascertain its destination. If there shall be no issue of the second marriage then surviving, this whole moiety is thereupon to descend to the children of the first marriage. Yet it is not less clear that the death of the mother, Hannah, is, .by the express terms of the contract, to have some effect upon the rights of the children. The form of expression does seem to import that a division in fact is then to be made. This is so wholly inconsistent with the manifest purpose, as to J. T. McAfee’s interest, that the mind cannot assent to it as the true interpretation.' The only other effect which can be given to this part of the instrument is to regard it as fixing the period which ascertains the persons to share in the enjoyment of this second moiety when J. T. McAfee’s interest shall have been determined by his death. It will result, that there having been at that period two children of the second marriage surviving, each of these has now an estate in an undivided share in this second moiety, eq ual in value to the share which each of the children of the first marriage now takes in the first moiety, and each of the five (5) children has now an estate further in one undivided fifth part of the residue of this second moiety, after those two shares shall be satisfied; all these estates in the second moiety are postponed in enjo}rment until the death of J. T. McAfee, and the estates of the two children of the second marriage are liable to be defeated by the deaths of both before the period thus fixed for enjoyment, leaving no issue of either then surviving, and then in that event to go over to the children of the first marriage. This Court is thus led to the same conclusions which the Circuit Chancellor attained and ha's embodied in his decree; and our purpose herein has been rather to state our concurrence in these conclusions than to add any thing to the reasoning and authorities by which he has vindicated them.

It is ordered that the circuit decree be affirmed, and the appeals be dismissed.

Dunicin, C. J., and Wardlav, J., concurred.

Decree affirmed.  