
    [Chambersburg,
    October 17, 1823.]
    BOSLER against BOSLER.
    IN ERROR.
    Construction of a marriage agreement obscurely worded.-
    Error to the Court of Common Pleas of Cumberland county, This was -an action of covenant brought by Catharine Bosler, late Catharine Stayman, widow of Jacob Bosler, deceased, against Daniel Sharbon, administrator of the said Jacob Bosler, on the following agreement entered into between the said Jacob and Catharine shortly before their intermarriage and signed and sealed by Jacob Bosler.
    
    
      . Articles of agreement made, &e. 28th November, 1810, between Jacob Bosler and Catharine Stayman, witnesseth that Jacob 
      
      Hosier in case that said Catharine and me should intermarry, that-all that is now in her possession shall be and remain at her disposal at the day of her death, with full permission- from me: the goods and effects that she now enjoys according to the valuation taken this day, amounting to £ 665 4s. 6d., to be and remain to her and her heirs for ever. A small piece of land now inclosed in fence, said Jacob engages to clear if he chooses and joining John Stayman. The timber on said piece he engages not to cut down, nor destroy only for necessary use, such as repairing of fences, and fire-wood, -nor clear no more upon the place but what is above mentioned, In consideration of which privileges granted by me said Catharine unto said Jacob Bosler, he enjoying the same privileges upon said farm' as was to me willed, by Joseph Stayman deceased, with all the -goods and chattels by the appraisement above, doth by these presents bind himself in the penal sum of ¿81200 for the delivery of the same unto me or my heirs at the day of my. death.
    The personal property alluded to in this agreement consisted of stock of all kinds, farming utensils, grain, household, and kitchen furniture, table, and bed, linen, &c. &c., amounting to the sum mentioned of ¿6665 4s. 6d. according to, an appraisement made at the time of the agreement. The marriage took place on the day of the agreement. Jacob Bosler took .possession of the above mentioned efiects, and converted them to his own use, and died in December, 1815, his wife Catharine, the plaintiff, surviving. The defendant was his administrator, and it was admitted, had sufficient assets to pay t.he said sum of ¿6665 4s. 6c?. The above facts were contained in a case stated in nature of a special verdict, and the court below gave judgment for the defendant.
    
      Ramsey, for the plaintiff in error.
    These articles of agreement were marriage articles, and are to be construed according to the intent of the parties, if it can be discovered, however, imperfectly and obscurely drawn. They are the act of the intestate: and the rule is, that in case of ambiguity or obscurity in written instruments, they are to be construed against him who ought to have spoken more plainly. Pow. on Cont. 395. The two events in view here were, 1st, the death of C. Stayman before her husband; in such case her estate was to go to her representatives. 2d. The death of her husband before her. In that event she was to have her own estate.
    
      Carothers, contra,
    contended, that the wife was not to have the goods unless she survived her husband: and that at any rate, no right of action existed till she died. Bosler bound himself in' £ 1200 for the delivery of the goods at his wife’s death. This is the plain meaning of the agreement, though not well expressed. The last part of the agreement is plainly to this effect, and the first part is not inconsistent. “They shall remain at her, disposal at the day of her death.” Consider the situation of the. parties at the time of making the agreement. The plaintiff was a widow about to marry. The object was to secure her separate property for her children in case she died first. But if he died first, there was no occasion for this. They would be provided for out of his estate. Wherever the agreement speaks of the property going to the wife, her heirs are. mentioned. But when the husband is spoken of, there is no mention of his executors. There is no provision that if he died first she shall have no part of his estate. This construction will do justice to the plaintiff who is entitled to one half of her husband’s property, he having died intestate, and without issue: and it would be unjust that she should first take her own personal property, and then half of her husband’s.
    
      Ramsey, in reply,
    According to the defendant’s construction, £665 4s. 6cl., the amount of the personal property, might remain in the hands of the administrator of her husband, and in consequence of it she might starve. This never could have been the intent. The instrument should, as far as it is possible, be construed in her favour. He drew it and executed it, alone. It is, moreover, a marriage article, which is always to be liberally construed to effectuate the intent. 3 Atk. 91, 93. 69. 103. Her great object was to save her own personal property for herself. According, to the plaintiff’s construction, there was no security at all if the husband died first: for he might have bequeathed the whole personal estate to other persons.
   The opinion of the court was delivered by

Tilghman, C. J.

I refer to the case stated by the parties to this suit, on which the opinion of the Court of Common Pleas of Cumberland county was given. Catharine Bosler, and her. late husband Jacob Bosler deceased, entered into articles of agreement previous to their marriage, on the construction of which the pre- . sent suit depends. The question is, whether the personal property mentioned in the articles, which belonged to the plaintiff at the time of the marriage, was to be enjoyed by her immediately after her husband’s death, in case she survived him, or whether she was only to have the right to dispose of it by her will, but no enjoyment of it during her life. The agreement is very badly drawn. Almost every sentence is not only bad grammar, but obscure. On ■reading the first part, one would think, that the wife was intended to have no more than .the right of disposing of her personal estate by her will, but the latter part seems to show a different intention. The plaintiff had some real estate, which her intended husband was to enjoy during her life, and upon the whole, the understanding appears to have been, that he should have the use both of the plaintiff’s real, and personal estate, during their joint lives, and no longer; if she died first, it was to go to her devisees, if she made a will, otherwise to her heirs and personal representatives; but if she survived her husband, she was to take it on his death. He binds himself in the penalty of £ 1200, to deliver both real and personal estate to the plaintiff, Or her heirs at the day of her death. That is, as I construe it, to herself in case she survived her husband, or to her heirs, on the day of her death, if she died before him. To deliver the property to her on the day of her death; would be of no service to her; and therefore, the delivery to her, and the delivery to. her heirs on the day of her death, referred to two different events. If she survived her husband, the delivery was to be to her, immediately on his death. But if she died before him, it was to her heirs on the day of her death.- After all, I will not say, that the meaning which I give to this instrument, is clearly expressed. But it is the best I can make of it, taking all its parts into consideration.. I am of opinion therefore, that the judgment of the Court of Common Pleas should be reversed, and judgment entered for the plaintiff in error.

Duncan, J. gave no opinion not having heard the argument.

Judgment reversed, and judgment entered for the plain-tiff in error.  