
    Benjamin Williams vs. F. L. Claiborne et al.
    The recital in the premises of a deed is important; as its office is to explain the motives and reasons upon which the deed is founded.
    The marital rights of the husband to the property of his wife, cannot be defeated, unless an intention be clearly expressed that the property is to be held for the separate use of the wife; nothing is to he implied against him.
    The main object of a deed, is to be gathered from its provisions ; and when that is ascertained, it must prevail ; and a proviso or condition repugnant to the grant if the grant be specific, is void ; but if it be not specific, the proviso or condition does not defeat it; and a proviso which is only explanatory, is good.
    Where property was conveyed in trust, and one declaration of trust was in conflict with, and repugnant to the premises, recital, the habendum, and every other declaration of trust, the former must yield and be rejected.
    W. (in debt) and H. (possessed of large property) being about to marry by deed of settlement before the marriage, convey to a trustee for H’s. sole and separate use, all her property, and the interest, income and proceeds thereof on trust. 1. For the use of W. and H. for their natural lives, subject to disposal by H. by will. 2. That H. should have during her life, full control over the property, and that it should not be subject to W’s. debts or his control. 3. That the trustee might sell when requested: Held, that W. on the death of H. had no right in the property thus conveyed, or to a participation in the proceeds, income, or profits of it.
    Where in one clause of a deed of marriage settlement, between W. and H., the property was settled in trust for the use of W. and H. for their natural lives, and W. covenanted in the deed, that the whole property and its proceeds, should belong to H. for her sole and separate use ; held, that he was estopped by his covenants from setting up any claim to the property on the death of H.
    Appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    Benjamin Williams, filed his bill, setting forth that in November, 1836, being about to intermarry with Jane Hoggatt, they mutually united in a deed of marriage settlement.
    
      The following are such portions of the deed as it is deemed necessary to publish, viz.:
    “ This indenture of three parts, made this tenth day of November, in the year of our Lord one thousand eight hundred and thirty-six, between Benjamin Williams, of the county of Madison and state of Mississippi, of the first part; and Jane Hoggatt, of the county of Adams, and state aforesaid, of the second part; and F. L. Claiborne of the county of Adams, and state aforesaid, trustee as hereinafter mentioned, of the third part: whereas, a marriage is intended to be had and solemnized between the said Benjamin Williams and the said Jane Hog-gatt, and it is their intention to assign and secure to the separate use and disposal of the said Jane Hoggatt, all and every part and portion of her real and personal property, of what kind soever, and thereby not only to make a certain, liberal, and sure provision for her support and maintenance, but also to secure to her own separate use and disposal all her real and personal property aforesaid ; and whereas her property, real and personal, does and will consist in such sums of money and other personal property, and of such real property, as she, the said Jane Hoggatt, does now possess, and of such property as she may hereafter obtain by purchase, descent, devise, gift, or otherwise; and whereas it is agreed by and between the said Benjamin Williams, and the said Jane Hoggatt his intended wife, that all her said property that she now does possess, or may hereafter in due course of law become entitled to, shall be assigned to the said F. L. Claiborne, trustee as afore-named, to hold upon such trasteas are hereinafter named, mentioned, and provided respecting the same.
    
      “ Now this indenture witnesseth, that the said Benjamin Williams, and Jane Hoggatt his intended wife, for and in consideration of the said intended marriage and of the trust hereinafter mentioned, and of five dollars to the said Williams, in hand paid (the receipt of which is acknowledged,) have granted, bargained, sold, delivered, and assigned, and do hereby, &c., unto the said party of the third part, all the estate, right, title, interest, claim, and demand whatsoever, of the said Jane Hoggatt, of, in, and to all the lands, tenements, and premises whatsoever, which she may now possess, or hereafter may possess and hold by gift, devise, or descent, or in any manner whatever; and also all sums of money, goods, chattels, rights, credits, or personal property of any description whatever, which she either now possesses, or to which she may be hereafter entitled in any manner whatsoever; to have and to hold, &c., upon the following trusts, to wit:
    
      u First. That the said trustee or his successors shall hold the said property, real and personal, to the use, benefit, and behoof of the said Benjamin Williams and Jane Hoggatt, for and during the term of their natural lives, and after their death, to the use of the heirs of the body of the said Jane Hoggatt, by the said Benjamin Williams to be begotten; and, in default of such heirs, then to the right heirs of the said Jane Hoggatt; subject, nevertheless, to such last will and testament of the said Jane Hoggatt, hereinafter provided for and men-itioned.
    
      “ Secondly. And upon the further trust and confidence, that ■during the lifetime of the said Jane Hoggatt, she shall at all times have the full and complete control of her said property, real and personal, as aforementioned, and that the said Benjamin Williams shall not intermeddle therewith; and that the same or any part thereof shall not be liable to his control, debts, or disposal, and under the control of the said Jane Hoggatt, or of the said trustee, under her direction.
    
      “ Thirdly. And upon the further trust and confidence, that the said trustee or his successor, &c., shall and will, upon the reasonable request of the said Benjamin Williams and Jane Hoggatt, and at the wish of the said Jane Hoggatt, in writing, under her hand and seal, and duly acknowledged, bargain, sell, &c., unto such person, &c., as the said Benjamin and Jane may appoint, all or any of the said real and personal estate, &c.
    “ And the said Benjamin Williams, for himself, his heirs, executors, and administrators, doth covenant and agree to and with the said F. L. Claiborne, &c., that the property, real and personal, assigned as aforesaid, and the interest, and income, and proceeds thereof, in all respects whatever, shall be for the sole and separate use, benefit, and disposal of the said Jane Hoggatt, the said marriage notwithstanding; and that the same shall not be subject to the control, direction, or disposition of the said Benjamin Williams, or liable for his debts.”
    By the other provisions of the deed, it was stipulated, that Jane Hoggatt might receive and dispose of any part of the property, as she desired, during the coverture, in any manner she might choose: that if she survived her husband, or if a divorce a vinculo matrimonii took place, all the undisposed of effects in the hands of the trustee should “ be at her entire, separate, and sole disposal and control: ” that she might, by her last will and testament, dispose of all the property, real and personal, with the interest, income, and proceeds, according to her pleasure.
    The trustee by the deed accepted the trusts, and covenanted to account “ from time to time with the said Benjamin Williams and Jane Hoggatt,” &c., and also not to waste the trust property.
    It was further stipulated, in the conclusion of the deed, that if the trustee died, resigned, or refused to act, the probate court of Adams county should appoint a successor.
    The covenants in the deed on the part of Williams, were in these words:
    “ The said Benjamin Williams for himself, his heirs, executors and administrators, further covenants and agrees to, and with the said Jane Hoggatt, and to, and with the said F. L. Claiborne, trustee as aforesaid, and his successors, hereinafter provided for, that the said Jane Hoggatt, at any time during her life, shall and may have power to make an appointment, testamentary in writing, will and codicil, and therein and thereby to appoint and name the person or persons she may think proper to have, receive, and be entitled to said real and personal property, as aforesaid, together with the interest, income and proceeds thereof; and that the said Jane Hoggatt, shall and may dispose thereof, to wit, of all, or any part of her said real and personal property, which she now possesses, or may hereafter become entitled to; and that by virtue of such testamentary appointment, will or codicil, it shall and may be lawful for such person to receive the same, and to discharge the said trustee, &c.”
    As the questions presented .in this case turn exclusively on the construction of this deed, it is only necessary briefly to refer to other facts. The marriage took place immediately after the due execution of the ante nuptial agreement; but the honey-moon was scarcely over before a separation took place, and the wife removed to Louisiana to reside with her brothers. In February, 1838, the complainant exhibited his bill against the trustee in the deed, praying a decree against him, for one-half of the annual profits accruing from the estate embraced in the deed. Mrs. Williams soon afterwards, and before a decree rendered on that bill died, having disposed of all her separate property by last will and testament to her nephews and nieces. The complainant then filed a bill of revivor and supplement, making the legatees and executors under the will parties defendants. The new parties thus brought in demurred generally to the bill; and the chancellor on argument, sustained the demurrer, and dismissed the bill. His opinion will be found reported in 1 S. & M. Ch. Rep. 355.
    The complainant appealed from the decree.
    
      Jennings, Foote and Hutchinson, for appellant,
    contended,
    1. That the provisions in A deed, repugnant to its main object were void; for the first conveyance and the last testament were to prevail; 1 Vern. 343; Noy’s Maxims, 3, 4; 2 Blackstone, 379, 380, 381; 1 Shep. Touch. 87, 88; Bacon’s Abr. Tit. Grant I.
    2. That by the 24th section of our statute on real estates of June 1.3, 1822, How. <fc Hutch. 348, an estate tail, other than that therein permitted, is converted into a fee simple in the donee; at the date of the deed, the grantor had no living heir as the issue of herself and Williams, and the first limitation in remainder was inoperative, but as the alienative clauses attempted to create an entail failed, an estate in fee in the do-nee was the result. How. & Hutch. 349, sect. 28; lb. 357, sect. 59.
    3. If there be any doubt about the true construction of the deed, it must operate in favor of the husband, for the doctrine is that the conveyance must clearly show, that the property is to be for the separate use of the wife, otherwise the marital rights will attach. Equity will not deprive him, unless it be clear he was not to derive any benefit from it. 5 Vesey, 516; 2 Rep. 163; 4 Dessaus. 456; 1 Yates, 432 ; 3 Vesey, 166.
    4. Regarding Mr. Williams as the grantor, the rule is, that the grant is to be taken most strongly against the grantor, and the repugnant provisions are void.
    
      Montgomery and Boyd, for appellees.
    The facts in this case, so far as necessary to a decision, are contained in the first volume of Smedes and Marshall’s Chancery Reports, page 355. Neither party desires to raise any technical point, but desire the opinion of the court upon the-true construction of the marriage agreement, or conveyance to-Claiborne. We think the principle settled by the chancellor-correct, and properly applicable to the rights of the parties. The authorities cited in defendant’s brief, together with those alluded to by the chancellor, are direct and explicit. Nothing' can be clearer, than that the special intent will control the1 general expressions in a deed or will. Words will be rejected-, even to effectuate the special intent. Dormer v. Parkhurst, 3 Atk. 135; 1 Stra. 1105; Bagshaw v. Spencer, 2 Atk. 570;-Dovan v. Boss, 3 Bro. C. C. R. 27.
   Mr. Chief Justice Shareey

delivered the opinion of the court.

This bill was filed by the complainant to recover of the trustees of his wife’s property ; one half of the yearly profits of that property. Prior to the marriage, -the wife by deed in which the husband joined, conveyed to a trustee for her separate use, all her property of every description. The complainant’s right must depend alone on the construction which is to be given to the deed, which is the only question in the case. The late distinguished chancellor seems to have considered the case with his usual ability, and made a decree against the complainant, from which he has appealed.

The deed commences by reciting that a marriage was intended, and that it was the intention of the contracting parties “ to assign and secure to the separate use and disposal of the said Jane Hoggatt, all and every part and portion of her real and personal property, of what kind soever, and thereby not only to make a certain, liberal, and sure provision for her support and maintenance, but also to secure to her own separate use and disposal, all her real and personal property aforesaid ; and whereas her property, real and personal, does and will consist in such sums of money, and other personal property, and of such real property as she the said Jane Hoggatt, does now possess, and of such property as she may hereafter obtain by purchase, descent, demise, gift, or otherwise; and whereas it is agreed by, and between the said Benjamin Williams, and the said Jane Hoggatt, his intended wife, that all her said property that she now does possess, or may hereafter in due course of law become entitled to, shall be assigned to F. L. Claiborne, trustee as aforesaid, to hold upon such trusts as are hereafter named, mentioned, and provided respecting the same.” It is important that this recital in the premises of the deed should be noted, inasmuch, as its office is to explain the motives and reasons upon which the deed is founded. Cruise on Real Property, title, Deed, 317. And for that purpose the recital is useful. Sheppard’s Touchstone, 76. Taking this recital then as the key to the intention and motives of the parties, it is clear beyond doubt that Mrs. Hoggatt intended to secure to herself everything which she then possessed, or might afterwards acquire. The recital not only explains the intention, but it indicates with certainty the property to be secured by specifying particularly of what it consisted, and it embraced everything that she then had, or might acquire; not only that she might have a “liberal and sure support,” but to secure the whole to her separate use. By the habendum, all her lands, goods, chattels, rights, credits, money and personal property of every description, were conveyed to the trustee, upon the trusts thereinafter declared, the first of which was that the trustee should hold the property to the use of the said Benjamin Williams and Jane Hoggatt, for and during their natural lives.

But the deed also contains further specific declarations of trust. The second provided that during the life of Jane Hog-gatt, she should at all times have the full and complete control of all the property conveyed, and that Williams should not in-termeddle therewith; and that it should not be liable to his control or disposal, or for his debts, but that it should be under the control of the said Jane, or the trustee under her direction.

The third provided that the trustee might sell if required in writing to do so. Then follows a covenant of Williams, that the property assigned, and the interest, income and proceeds thereof should be for the sole and separate use and benefit of the said Jane, and that it should not be liable to the control or disposition of Williams, or liable for his debts; and a further covenant that said Jane, by a demand in writing under seal, and attested, might receive from the trustee any part of the property, or the income, or proceeds, and to dispose of the same as she might think proper. The deed also contained further provisions, all indicating clearly, that Mrs. Hoggatt was to have the entire interest in the property and income, and lastly she reserved a power to dispose of it by will, which she did, and has died since the institution of this suit.

We concur fully with the counsel for complainant, that the marital rights of the husband cannot be defeated, unless an intention be clearly expressed that the property is to be held for the separate use of the wife. Nothing is to be implied against him. This is the rule laid down by the authorities, and is one which we have heretofore recognized. Another rule invoked for complainant is, that provisions in a deed repugnant to its main object, are void. The main object of a deed, is to be gathered from its provisions, and it will depend upon the deed itself, which is its main object; when that- is ascertained it must prevail. The rule goes thus far ; a proviso or condition, repugnant to the grant, is void, provided the thing be specially granted. But if it be not specially granted, the proviso or condition does not defeat it. And a proviso which is only explanatory is good. Bacon’s Abridgment, title Deed.

It is under the first declaration of trust that complainant claims half the profits of the estate. By this it is said the property was conveyed to the trustee for the use and benefit of Williams and Mrs. Hoggatt for life, and that this is the controlling clause of the deed, which cannot be defeated by anything which follows it. If this be true, the complainant is as much entitled to the whole of the property and the proceeds for life, his wife having died, as he is to half the profits. This clause contains no conveyance of the profits, except in general terms.

This is not the granting part of the deed. It is but one amongst several declarations of trust, and cannot be entitled to more weight than the succeeding trusts. If it does not harmonize with the succeeding trusts, then we must look at the whole instrument, and conform to what was manifestly the intention of .the contracting parties. It is true, that this clause is not altogether reconcilable with the other parts of the deed, but all the' other parts harmonize together. This is repugnant to the rest. Which is to prevail ? Are we to take one declaration of trust, and make it control the premises and recital, the haben-dum, and every other declaration of trust, or is it to yield to the other parts'? According to the rule already laid down, we shall be compelled to reject this clause. It is not a special grant, and must therefore yield to the subsequent express clauses or conditions. The construction is to be made on the entire deed; every part ought, if possible, to take effect. And if certainty once appears in a deed, that must be referred to as explanatory of what is indefinite. Cruise, title Deed, 293, et seq. When there are words in a deed, that evidently appear repugnant to the other parts of it, and to the general intention of the parties, they will be rejected. Ib. 296. If language is capable of expressing anything beyond doubt, this deed certainly does show that it was the intention of Mrs. Hoggatt, and of Williams, that she should hold the whole property and its proceeds to her separate use; that Williams was to have no interest whatever in it. His covenants show this beyond the possibility of a doubt, and if they are useful for no other purpose, they certainly may be consulted to prove his intention. But we may here ask, why he is not bound by them 1 We know of no reason. They were made in view of marriage, and that is a sufficient consideration. But we are asked to follow that rule of construction which prefers the first clause in a deed. If we take this, it excludes the complainant. The clause on which.he relies is in the middle. The intention is very fully and clearly expressed before and after the clause that is said to convey to him. Altogether, we think the intention and objects of the deed so clearly expressed as to leave nothing to implication. The marital rights of the husband are defeated by a clear intention expressed with certainty. We also think that the clause under which complainant claims, must yield, inasmuch as it is repugnant to all that precedes and follows it. It is at most but a, general declaration of trust, liable to be controlled by the more specific declarations.

The decree is affirmed.  