
    Brown and Wife v. Bonner &c.
    January, 1837,
    Richmond.
    (Absent Brockenbrough, J.)
    [31 Am. Dec. 637.]
    Husband and Wife — Antenuptial Agreement — Enforcement against Husband - Equity Jurisdiction —Histake. —A woman being about to marry, it is agreed between ber and ber intended busband that out o£ ber personal estate a sum of money shall be given to and settled upon ber sister, and tbe intended husband undertakes to have an instrument drawn to carry this purpose into effect; tbe husband accordingly has an instrument prepared. which is produced by him immediately before the marriage, and executed; but it turns out that the instrument is so drawn, that at law it does not amount to a gift, nor intercept the marital rights; Head, notwithstanding, the agreement itself may be set up against the husband, and equity will correct the detect in the instrument, whether it proceeded from fraud or mistake.
    Appeal from a decree of the late supe-riour court of chancery holden at Richmond, in a suit brought by Richard R. Brown and Louisa E. H. his wife, formerly *Tatum. The original bill alleged that Susanna W. Atkinson, being a feme sole of full age and about to intermarry with Jesse A. Bonner, and being desirous, previous to her marriage, to make some provision out of her own property for the female complainant, who was her half sister, with the full knowledge and previous approbation of her intended husband, executed a deed of gift to the female complainant, whereby, in consideration of natural love and affection, and for the nominal consideration of one dollar, she gave and granted to the female complainant, when she should arrive of age or marry, the sum of 2200 dollars, subject to a deduction of whatever moneys might be expended in the education of the donee; which deed was duly recorded. A certified copy of this deed was filed as an exhibit. It is in these words:
    “Know all men by these presents that I, Susan W. Atkinson of the county of Brunswick, for and in consideration of the natural love and affection which I bear to Louisa E. H. Tatum my beloved sister, as well as for the farther consideration of one dollar to me in hand paid by the said Louisa E. H. Tatum at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have given, graciously granted, and do by these presents give and grant unto the said Louisa E. H. Tatum, her heirs, ex’ors &c. when she arrives of age or marries, the just sum of twenty-two hundred dollars, deducting therefrom what moneys may be expended on her the said Louisa E. H. Tatum for board, schooling &c. unto the said Louisa E. H. Tatum, her heirs, ex’ors &c. forever. In witness whereof I have hereunto set my hand and seal this 16th day of January A. D. 1816.
    Susanna W. Atkinson [Seal.]
    Signed, sealed and delivered in the presence of us, Martha Collier, Charles Cordle. ”
    *The bill charges that the said Susanna, at the time of the execution of the deed, and at the time of her marriage with Bonner, which was very shortly after the date of the deed, possessed personal estate to the value of about 10,000 dollars, of which there was actually in her own or her former guardian’s hands, money to the amount of the said sum of 2200 dollars ; that the whole of this property came into the hands of Bonner upon his marriage ; and that Bonner, during the lifetime of his wife, in conformity with the deed of gift and with the duties it imposed on him, actually expended a part of the money so given the female complainant, in board, schooling &c. It states the death of the said Susanna, the marriage of the complainants, the demand upon Bonner for the unexpended balance of the 2200 dollars, his refusal to paj', and the subsequent institution of an action of covenant upon the deed against Henry Wyche sheriff of Greensville county, to whom the estate of the said Susanna had been committed, in which action there was a judgment quando accid-erint. And then the ground is taken, that though at law the deed constituted a mere covenant, yet in equity it is an actual gift, and Bonner is to be regarded as a trustee for the female complainant, of the property of his wife to the amount of the sum given by the deed.
    Bonner answered, admitting that the instrument was executed previous to the marriage, with his privity and consent, and that after the marriage he received the personal estate of the said Susanna, amounting to between four and five thousand dollars. He mentions that his deceased wife was possessed of a tract of between 840 and 1000 acres of land, worth at the time of her death about five dollars per acre, which had descended to the female complainant as her only heir at law, and suggests that it would be as equitable to consider the plaintiffs as trustees holding the land for the payment of the gratuity of 2200 dollars, as to consider *bim a trustee of any part of the personal estate for that purpose. His advancements to the female complainant he states to have amounted to about ISO dollars.
    Depositions were taken provine: the case more strongly than it was stated in the original bill; and then the plaintiffs had leave to amend. The amended bill charges that after it had been agreed between the said Bonner and the said Susanna before their intermarriage, that a sum of money should be given to and settled on the female complainant, the said Bonner, at the request of the said Susanna, had an instrument of writing prepared to carry the said intended settlement or donation into effect, and brought it in blank to the said Susanna; but on account of some informality in the instrument thus first prepared, the same was not executed, and then Bonner said to the said Susanna that he would have an instrument drawn by a lawyer, which would answer the intended purpose; and afterwards, on the day of and shortly before his marriage, he presented to the said Susanna the very instrument or' deed of gift which was then executed b3y his intended wife, being the same exhibited with the original bill. And on this state of facts the ground is taken, that as Bonner undertook to- have a deed prepared by a lawyer which would answer the intended purpose, and the purpose intended being to settle 2200 dollars of the wife’s property on the female complainant, in such manner as to assure the same to her on her attainment to full age or. marriage, he Bonner cannot object to any defects in the instrument, but is bound to make good the same according to the true intent thereof and of the agreement which it was intended to execute, in like manner as if he himself had been a party, thereto and had executed the same, and as if the settlement had been made by a deed in due form to accomplish the purpose which he as well as his intended wife designed. This amended bill was taken for confessed as to the defendant Bonner; and its ^allegations were besides fully proved by the depositions taken in the cause.
    The chancellor,.by his decree, declaring that the defendant Bonner ought not to be held any further bound than strict law would bind him, since no intentional fraud was committed by him, adjudged and ordered that the bill of the plaintiffs be dismissed. Prom this decree the appeal was taken.
    Leigh, for the appellants.
    Johnson, for the appellees.
    
      
      See monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159, and monographic note, on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   TUCKER, P.

The original bill in this case states that upon the intended marriage of the appellee Bonner with Susanna W. Atkinson, it was agreed that a provision should be made out of her estate for her half sister, who afterwards intermarried with the complainant Brown. The sum fixed upon was 2200 dollars, and the personal estate of the intended bride was ample for its payment. In this bill the transaction is considered as having amounted to a gift, and as having operated to intercept the marital rights of the appel-lee. This view of the case was, I think, obviously incorrect; and as the evidence afterwards taken abundantly shews, it did not present the rights of the female complainant in their proper aspect. An amended bill was afterwards filed, in which it is stated, in strict conformity with the facts as proved by the depositions taken anteriour to its exhibition, that “after it had been agreed between the intended husband and wife that a sum of money should be given to and settled upon miss Tatum (now mrs. Brown), the appellee, at miss Atkinson’s request, had an instrument of writing prepared to cany the intended settlement into effect, and brought it in blank to miss Atkinson, who did not execute it for some supposed informality; whereupon Bonner the intended husband said to his intended wife, that he would have an instrument *drawn by a lawyer which would answer the intended purpose, and afterwards produced the instrument now deemed incompetent to bind him, which was executed accordingly.” These allegations are beyond controversy, because the bill has been taken for confessed against the appellee.

Upon these facts, I cannot hesitate about the conclusion to be drawn in that tribunal which considers that as done which ought to have been done, — which holds itself bound to rectify mistakes, — and which looks upon fraud with no grains of allowance. I can have no doubt that the benevolence of the deceased sister must be effectuated in favour of the survivor, and that the appellee is justly chargeable with the payment.

It is objected however, in the first place, that it does not appear that the design was that the money was to be paid to miss Tatum out of the personalty of her sister, and that the intent to provide for her might as effectually have been executed by a covenant binding her heirs, and thus charging her realty. Such, in my view, was obviously not the design of the parties. An engagement to make a provision in money would naturally refer itself to the personalty, in the absence of positive evidence, even if the circumstances did not strongly prove that the personalty was looked to. But when we take into view that miss Atkinson had a large sum in the hands of her guardian, besides a personal estate of four or five thousand dollars which Bonner received after the marriage; when we see him procuring an instrument to be drawn, having not the remotest reference to the realty, and not even binding the heirs for payment; when we see him also, during the coverture, making advances in part of this gift, which are not pretended to have been raised out of the realty, and which he does not even now seek to charge upon it; credulity itself . cannot believe that the real estate was looked to by the parties as the fund from, which payment was to be made.

'^Taking then the agreement to be that 2200 dollars should be given to and settled upon miss Tatum out of her sister’s personalty, and that the intended husband undertook to have an instrument drawn by a law3yer which should answer the intended purpose, but in fact produced, and had executed, an instrument of writing wholly inadequate. to the purpose; there can be no doubt, I think, that such agreement should now be set up against the husband.

Had the husband fraudulently procured a defective instrument, knowing it to be such, and in the confidence and agitation •of the moment procured its execution, to the prejudice of the half sister, no language could have been too strong in denouncing his iniquity. It is not believed that he could have done so. Yet it was justly said in the argument, that the fraud is not less great to endeavour now to take advantage of his own blunder and mistake, however innocent. No principle is in equity better established than this, that though there may have been no fraud in the original transaction, yet the attempt to enforce it may become a fraud. Where one is not even originally party to the .transaction, yet if it was effected through fraud, he becomes a party to the fraud by seeking to have advantage of it. Such was the case of Huguenin v. Baseley, 14 Ves. 273, and Marbury v. Brooks, 7 Wheat. 556. And surely the case is not less strong of one through whose mistake anotner has been severely injured, and himself in an equal degree benefited, and who afterwards seeks to avail himself of that mistake to the prejudice of his adversary.

Had the transaction originated in fraud, there can be no doubt that the appellee would be chargeable. In the ordinary case <of an estate suffered to descend, the owner being informed by the heir that if the estate is permitted to descend he will make provision for a third person, there is no doubt the court of equity would compel the heir to discover whether he did make the ^promise, notwithstanding the statute of frauds, and would force him to comply with it, notwithstanding the third party is a volunteer. See Strickland v. Aldridge, 9 Ves. 519; Luttrel v. Olmius, quoted and approved in Mestaer v. Gillespie, 11 Ves. 638, 2 Freeman 34, 285; Chamberlain v. Agar, 2 Ves. & Beames 262. In the case of Luttrel v. Olmius, the party claiming was a volunteer, and yet he had relief. Why? Because he was not seeking relief against the giver, whom a court of equity will not compel to part with his property upon a naked promise without consideration, but because he sought it against a party who received the property upon the express consideration of applying it to his use. Who ever heard of a trustee setting up against his cestui que trust the defence that the latter was a volunteer? It cannot be; because although the cestui que trust may be a volunteer, there is a sufficient consideration to justify a decree against the trustee. So in the case of But-.trel v. Olmius, though the, claimant was a volunteer, yet as the tenant in tail could' not in conscience take advantage of the iniquitous act, the obligation of conscience stood in lieu of a consideration, and the estate was considered precisely as if the act had been done which ought to have been done. And so here, though miss Tatum is a volunteer, and could not have filed a bill against her. sister to rectify the settlement, she may well maintain her demand against B.onner, to whom his wife *had given her whole personalty by marriage, upon the consideration of his agreeing to make a valid settlement upon the sister. I consider that settlement as if duly made, and the appellee of course as bound for the balance of the sum remaining unpaid; and am therefore of opinion to reverse the decree and send the cause back for further proceedings.

Decree reversed, and cause remanded for further proceedings. 
      
      Nole by the president. The doctrine that equity will not enforce an executory contract in favour of a volunteer, rests upon the obvious principle that no court can compel a man to give away his property, and if the contract does not amount to a gift, it will not be converted into one. And so if the contract be incomplete; for if it be so, the giftisnot perfect, and no court has power to make it so. But where A. gives property to B. for the use of C. or in consideration that B. shall pay to C. a certain sum. the gift is complete from A. the owner, and it is in equity as much a gift to C. pro tanto, as it is to B. for the residue, and though C. is a volunteer as lo A. yet there is a good consideration lor a demand of payment from B. as to whom he is no volunteer.
     