
    Roane’s Executors, v. Hern, et al.
    October Term, 1791.
    navriage Agreement. Coc.Uruct i:i:i of.
    This was an appeal from the High Court of Chancery.
    Upon the marriage of Mrs. Hern, formerly Mrs. Cook, with her former husband William Roane, an agreement was duly executed between them, which contained the following covenants ;
    1st. That the two parties should, during their coverture, hold, jiossess, and enjoy all such rights and privileges as belonged to them, in as full and ample a manner and form, as if the agreement had never been made.
    2d. That if the said William should die before his said intended wife, she should immediately hold, possess, and enjoy during her life, the dwelling house, &c. with the appurtenances, '^together with 800 acres of land adjoining, and one third of a grist mill, in lieu of dower in the lands of the said William.
    3d. That she should possess and enjoy, immediately after his death, also 20 good negroes including a full proportion of house servants, such as she might choose, and if the said 20 negroes should not amount in value to a full third part of the negroes of which the said William should die possessed, as many more to be allotted her, as will amount to a full third part of the whole of the negroes — all which, to be in lieu of dower of the slaves of the said William, and to be subject to the same laws and regulations.
    4tb. That if his said intended wife should survive him, and have no child living at the time of his, or her, death, the negroes and their increase that came into his estate by this marriage, should be vested in his said wife in such absolute manner as that she might dispose of them to whom she pleased ; or otherwise to pass and descend to her heirs agreeably to the laws of the land : but if the said William with the consent of his said wife should sell any of those negroes, his estate not be accountable for the same.
    5th. That at his death his said wife should have the best riding carriage and horses belonging to the same as her absolute property, which should not be brought into account in the division of the personal estate.
    Lastly, that she should he entitled to receive one third part of the personal estate, in the same manner, and under the same rules, customs and laws, as if this agreement had never been made.
    This agreement bears date, the 24th of October 1782, but was not executed until about the 14th of November, when the marriage took place.
    About two or three days prior to the execution of the above marriage articles, William Roane conveyed to each of his two sons by a former wife 14 or 15 slaves.
    William Roane died sometime in November 1785, leaving no issue by his last marriage ; and by his will devised, that, in addition to the household furniture to which his wife was entitled by the marriage articles, his executors should allow and assign her as much more during her widowhood, as they should judge necessary for her use.
    After his death, an order of the county courl, upon the motion of his executors, was made, appointing commissioners to value the slaves of the said decedent; and to allot to his widow, the *part thereof which she was entitled to by marriage contract; and to divide the residue amongst his children, according to his will.
    In pursuance of this order, the commissioners at first allotted to the widow ten of the negroes originally belonging to William Roane, which, with those that came into the estate by his intermarriage with her, made the number twenty. But afterwards, finding that one of the negroes, which had belonged to the widow before marriage, had died since the death of William Roane, they allotted the widow only nine of the negroes properly belonging to his estate, but equal in value to the ten first mentioned ; with this partition she acknowledged herself well pleased and satisfied. But afterwards, being advised that she was entitled to a greater number of the slaves, she filed her bill in the High Court of Chancery against the executors of William Roane, claiming as many more slaves as would1 make her proportion equal to one third of the whole number, including those conveyed to his sons, and excluding those to which she was entitled before marriage ; the latter being claimed in absolute fee. The bill states that the executors had refused to deliver her more than two carriage horses, although four were accustomed to draw it, and had sold the whole of the personal estate, whereby the complainant had been compelled to purchase a considerable part of it, and was then actually sued by the executors for the amount of that purchase ; to which suit she prays an injunction.
    The executors answered, and insisted that the allotment of slaves was conformable to the sound construction of the articles. That the whole of the personal estate except slaves, would be exhausted in the payment of debts. — And lastly, that the carriage was usually drawn by two horses ; a greater number having never been used, but when a journey was to be performed.
    This suit having abated by the intermarriage of the plaintiff with Hern, was revived in their names, and the cause coming on to be heard, the court delivered the following opinion and decree, viz. “That in the slaves, to the possession of which the plaintiff Ann, by the marriage contract between her former husband William Roane the testator, and herself, was entitled in lieu of dower, those, which were her property at the time of their intermarriage, ought not to have been included ; because the slaves which, by the contract, she should have and enjoy in the event of her surviving him, whether having a child by him or not, are supposed to be his proper slaves ; since a power to settle them on her, in lieu of *dower or otherwise, implieth a property in him ; and because the said slaves, to be in lieu of dower of his slaves were subject to the laws and regulations of dower slaves whereas the slaves which the plaintiff Ann had at the time of the intermarriage, were not his, but remained her property when he died without having a child by her ; and were not subject to the laws and regulations of dower slaves. ”
    “That the plaintiffs ought not to be precluded by the order and decree of Essex County Court, and the division and assignment made in obedience thereto, from recovering, now, so many of the slaves, as the plaintiff Ann was entitled to, more than what were then assigned her; because the plaintiff Ann was not a party in the suit, if it can be called a suit, wherein that order and decree was made; nor does her present demand appear to have been discussed, or even stated at that time : that, whether the gifts by the testator to his sons Thomas and Spencer be fraudulent, is a question not proper to be decided in this cause, as it is now brought on, the donees not being made parties : And that the plaintiff Ann was entitled to the two horses only which she hath received, because only that pair having ordinarily drawn the carriage to which the horses were said to belong, are understood to have been designated; ”
    Ordered and decreed, “that of the surviving slaves, which were in possession of the testator at the time of his death, exclusive of the unprofitable from old age and infirmity, and also exclusive, as well of the plaintiffs now proper slaves, and the nine formerly received by the plaintiff Ann, as of those given by the deeds of gift to the testator’s sons, although they might have been in his possession at his death, eleven, or so many more as with those nine will be equal to one third part, be assigned to the plaintiffs ; together with the children of any females among those, so to be assigned, born since the testators death, the value of which slaves, so to be assigned, shall be in like proportion to the value of the stock whence they are to be taken, as one of the numbers is to the other ; and that the defendants do account with the plaintiffs for the profits of the slaves so to be assigned, from the end of the year in which the testator died. ”
    An injunction, to say further proceedings on the judgment at common law obtained by the defendants against the plaintiff, was also awarded, on the usual terms, to continue until the account of administration of the testators estate should discover '^whether a surplus thereof would remain, the plaintiffs share of which might discharge, or be discounted out of, that debt.
    Erom this decree the defendants appealed.
    
      
      See Wythe 90, 91, 93.
    
   The PRESIDENT

delivered the opinion of the Court.

We will discharge the case from every thing connected with the division made under the order of Essex County Court. There was no suit commenced and the order was entirely ex parte.

It is the proper province of a court of equity to decree the specific execution of marriage articles, where the apparent intention of the parties will direct the decree without a strict scanning of the articles according to nice grammatical rules, or the technical meaning of the words.

It is objected, in the first place, that there are no parties to this statement. Mr. Roane and Mrs. Cook (the intended wife) are named as the contracting parties. All covenants refer to them, and the property spoken of refers to their property. — 2d, It is objected, that there is no consideration. It is plain, that the intended marriage, was the consideration ; and the motives expressed are, to make a provision for her, and to preserve peace in the family.

'The first clause, tho’ badly expressed, is easy to be understood : what were the respective marital rights of the parties is not contemplated, or defined; but whatever they were, the settlement was not to meddle with them, but was to commence on the dissolution of the marriage. No provision is made for the case of his surviving, but in the case of her outliving him, her provision is fixed, as to the three classes of his property.

The 2d clause relates to the land, and describes what part she shall hold in lieu of dower; about this there is no dispute : one thing however might be remarked, that as his lands, and not hers, were the subject of this clause, it induces an opinion, that his slaves, and not hers were also the subject of the 3d clause. It is contended, that under this clause, the wife’s slaves are to form a part of the 20 which are to be allotted to her ; and that only so many of his are to be added, as will make up that number. This construction, it is said, is reasonable because the husband had but 40 slaves at the time of his death, and 20 would be half of that number, instead of a third, the proportion contemplated by the contract. But it is in proof that the estimate was made upon 70 slaves, of which he was possessed, at the time of the gifts of his sons.

*It is also argued, that Mr. Roane was possessed of his wife’s slaves at the time of his death, that they formed a part of the fund out of which the 20 were to be taken, and therefore that they should make a part of the number. The possession spoken of in this clause, means property, and not a mere holding. It means the same thing as is intended by the subsequent words, “of the slaves of the said William.” He had a right to hold her slaves during their joint lives, but the moment of his death put an end to his right. The contract operated upon, and gave them to another; and therefore they could not form any part of the stock out of which her dower was to be taken. Besides, the different. degree of interest, which she had in her own slaves, from that which she would have in dower slaves, seems conclusive, that they were not intended to be coupled together. But if in this clause the question be doubted, the next fully explains it.

Hitherto the parties appear to have contemplated the husband’s estate, and the wife's provision out of that. In the 4th clause, which in the settlement, is called the third, they take up the subject of the wife’s slaves, and speak of them very inaccurately. It appears as if they had formed an intention for providing for the issue of the marriage, but no such provision is made, except by implication, and as there was no issue, it is immaterial.

Nor is any provision made for the case of the husband’s surviving ; in which event he would therefore have been entitled to her slaves; but neither did that event happen.

The event provided for did take place. She survived, and had no child living at his death, when she was to be vested with the slaves which came by her, and their increase, in such absolute manner, .that she might dispose of them to whom she pleased, or they were to descend to her heirs. The child spoken of in this clause, means child of the marriage, since none other could be living at his death. Her death was probably mentioned in order to provide for the case of such a child living at his death, and dying before her.

Upon the whole of this point, the Court approve the decree, that the dower slaves shall be made up 20 in number out of Mr. Roane’s slaves, independent of hers. They also approve the decree as to the chariot horses.

Decree affirmed with costs.  