
    Joel W. Green, Ex’or of Benj. J. Allen, v. George Rumph and others, his creditors.
    Contracts in consideration of marriage, are greatly favored in Chancery, and as between the parties themselves, and others falling within the express objects of the contract, they will be enforced 'according to the obvious intent, however informally or irregularly they may have been executed; and that, although they may have been rendered inoperative at law by the intermarriage of the parties.  [*8]
    In contemplation of marriage, defendant executed a deed, in which, after reciting the intended marriage, he conveyed, directly and without the intervention of a trustee, to his intended wife, “ all the estate which she was entitled to of her first husband,” consisting of slaves and other personalty, to her, “ her heirs, administrators and assigns.” The marriage was afterwards solemnized, and defendant and his wife went into possession of the property. After the death of the wife without issue of that marriage, on a bill filed by a son of the wife’s first marriage, it was held, that in Equity, the deed will be regarded as a marriage settlement in trust for the wife and her heirs at law, that the marital rights of the husband would not attach, and consequently that he took only his distributive share as heir at law. [*4]
    The Act of 1792, 1 Eaust, 209, requires all marriage contracts, &c., &c., to particularize the property intended to be settled, or to have a schedule of the same annexed: a description of the property in a marriage settlement as that to which the wife “is entitled under the will of her husband J. A. or to which she may be entitled independent of the will,” is not a compliance with the act, and the settlement is void as to the creditors of the husband subsequent to the marriage. [*5]
    Josiah Allen died about 1196, having before made and executed his last will and testament, by which he bequeathed his whole estate, cousisting of slaves and other personalty, to be equally divided between his wife, Janet Allen, and his two sons, Benj. J. Allen and Wm. W. Allen. William died some time after, in his infancy, and consequently without issue, and intestate, so that his portion of the estate, which then remained undivided, descended to his mother, Janet, and his brother Benjamin, the whole of which remained in the possession of Janet, the mother.
    In 1804, and subsequently to the events above referred to, Janet Allen entered into a treaty of marriage with the defendant, Geo. Humph, and in contemplation of the marriage, they joined in the execution of a deed, which was duly recorded in the office of Secretary of .State. In this deed is recited an agreement, “ that ^previous to the performance of -■ the said intended marriage, the said George Rumph should assign and make over all and singular the property or possession that the said Janet Allen is or may be entitled unto by virtue of the said will of the said Josiah Allen, likewise all and singular the property and possession which she now has, or is entitled unto, independent of the said will, with the increase of slaves, stock, &c., to the said Janet Allen, her heirs, executors and assigns ” And reciting the intended marriage, and a nominal sum paid as the consideration, the deed proceeds thus : “ The said George Rumph hath bargained, sold, and by these presents doth bargain, sell and set over to the said Janet Allen, her heirs, executors, administrators and assigns, all the said legacy, so bequeathed by the said Josiah Allen, and all and singular any other species of property belonging to the estate of the said Josiah Allen, or which she, the said Janet Allen, is or may be entitled unto, with all the increase of slaves, stock, &c.”
    The marriage was solemnized in 1805, the year following the execution of this deed, and the parties lived together in the joint possession and use of the entire estate of Josiah Allen, (for it was yet undivided,) until 1816 or 1817, when they separated, and Humph, the husband, went abroad and engaged in the business of overseering; and shortly after (about 1818) the estate was divided between Janet, the wife, and her son Benjamin ; and she, with her portion, went to live with a relation. Janet died in 1828, but before that time the defendant had possessed himself of some of the slaves, and after her death, administration of her estate was granted to him, and he took possession of the others. As a circumstance, going to show that the defendant regarded this estate as the separate property of his wife, it is stated that he was arrested for debt in 1814, and intended to apply for the benefit of the insolvent debtor’s act, he made a schedule, of his effects and estate, on oath, in which no part of this estate was included, and it is conceded that he is now insolvent.
    After the defendant had possessed himself of all the negroes, they were taken in execution by the sheriff, to satisfy judgments against him to a large amount, and the original bill in the case was filed by the plaintiff’s testator, who survived his mother, to enjoin the creditors from selling the negroes, and to have their possession restored; but in the bill of revivor, filed by the plaintiff, it is stated that they have been since sold by agreement, *and the proceeds deposited with the attorney of the judgi J ment creditors, subject to the final decree of the Court, without detriment to the rights of any of the parties.
    The plaintiff claimed the fund for his testator, as sole heir of his deceased mother. Humph, the defendant, claimed it in virtue of his marital rights. If his claim is valid, his creditors are of course entitled; but whether it is or not, it is insisted for them, that the deed is void as to creditors, because it contains no particular description of the property intended to be settled, either in itself or by a schedule attached, as required by the Act of 1192.
    The case was heard before Chancellor Johnston, at Walterborough, January, 1834, who held, that the deed executed by Rumph previous to his marriage, interposed no barrier against the operation of the marital rights upon his subsequent marriage and obtaining possession of the property, and decreed accordingly. From this decree the plaintiff appealed, on the ground: that the deed, executed by Rumph, divested him of his marital rights, and vested an absolute separate estate in his intended wife.
    
      
       Smith v. Maxwell, Ex’or, 1-Hill Ch. 101.
    
   Johnson, J.

It will not be questioned that the legal estate in the property of the wife vested in the husband on the marriage. At the time of the execution of this deed, the property which it professes to convey to her was her own, consequently the defendant, Rumph, had no interest, and could convey none, so that, in a legal point of view, the deed was a nullity. The result would have been the same if the property had been in the defendant, Rumph, and by him conveyed to his intended wife ; all the personal goods of the wife, from whatever source the title may be derived, vest absolutely in the husband on the marriage. But contracts in consideration of marriage are greatly favored in chancery, and as between the parties themselves, and other persons falling within the express objects of contract, they will be enforced according to the obvious intent, however informally or irregularly they may have been executed ; and that, although they may, as in this case, hare been rendered inoperative at law by the intermarriage of the parties, and equity will regard that as already done which ought to have been done, to give full and legal effect to the intention of the parties.

*These rules are sanctioned by this Court in Colclough and Wife r*, v. Colclough, administrator of Carolan, decided at Columbia, at L May Term, 1831, which in most of its features bears a striking analogy to the case in hand. Philip Carolan and Mary Davis, in contemplation of marriage, entered into an informal agreement, by which it was provided that the property of the intended wife should be settled to the use of the children of the marriage, and in default of children, to the use of the wife for life, and at her death, to such person as she might devise it, without providing for the case of her dying intestate, and she was declared by the deed to be the sole trustee of the property. The marriage was had, and the wife, Mary, died without any issue of the marriage and intestate. The husband survived the wife and retained possession of the property until his death, which occurred sometime after. He left neither wife nor any other known relation, and died intestate. The question was, whether the property was distributable amongst the heirs of the wife or vested in the husband and escheated for the want of heirs, and it was held that the heirs of the wife were entitled to take by descent. And my brother Harper, who then presided in the Court of Chancery, after laying down the rule that marriage articles will be carried into effect in Chancery by pursuing the intention of the parties so far as the rules of law will permit, remarks, “that if the parties themselves had executed that agreement by conveying to trustees to hold to the separate use of the wife for life, remainder to the children of the marriage, remainder in default of children, to such person as the wife might appoint, without any further disposition, the undisposed of equitable remainder must have continued in the wife herself,” and would, in effect, have operated as a limitation to her right heirs and legal representatives, in the event of her failing to make the appointment.

Iuformal and inartificial as the deed under consideration certainly is, there is no question about the intention of these parties. Janet Allen was possessed of slaves and other personalty bequeathed to her by her deceased husband, and was about to enter into matrimony with the defendant, Rnmph. He, reciting the intended *marriage, under-1 takes to convey this property to her, and regarding the terms her heirs, executors, administrators and, assigns, as only expressive of the quantity of the estate.intended to be conveyed, and not as a limitation over, it covers the entire, the absolute estate. To give effect to this contract at law, the conveyance ought to have been to some third person as trustee for these uses, but equity presumes that done, which ought to have been done, and in adjusting the rights of the parties in this Court, we must suppose that the intended husband and wife, George Rumph and Janet Allen, had joined in a deed conveying this property to some third person, in “trust for the said Janet, her heirs, executors, administrators and assigns.” In that case, it is obvious that the marital rights of the husband could not attach, because the property was in another, and not in the wife. It could not attach after the death of the wife, because the bond which united them, and conferred on the husband a right of property in her goods, unless as an heir, was dissolved on the instant of her death. It is true, as in the case of Colelough and Wife v. Colclougli, Administrator, the heirs of the wife, as between themselves and the husband, are entitled to have distribution of the estate, and under the Act of 1791, the defendant, the husband, is entitled to one-third, and the plaintiff’s testator, her surviving- son, to the remaining’ two-thirds.

According to this view of the case, the creditors of the defendants would only be entitled to his one-third part of the fund. But the Act of 1792, (1 Faust, 209,) declares that all marriage contracts, deeds or settlements, shall specify and particularize the property intended to be settled, or shall have a schedule thereunto annexed, containing a particular description of it, and in default of such schedule, they are declared to be fraudulent, null and void, with respect to and against creditors, and bona fide purchasers and mortgagees; with a proviso, that the settlement should be good notwithstanding, as to debts contracted by the husband before marriage. In this deed, the property is described, as that “ to which Janet Allen is entitled to, under the will of her husband, Josiah Allen, or to which she maybe entitled, independent of the will;” certainly not corresponding with the particularity intended by the Act, nor is there any schedule connected with it, containing a more certain description. It is therefore void as to creditors.

The creditors claiming, are, according- to a list of judgments, which has been brought up here, all for debts contracted subsequent to the marriage. It is therefore ordered and decreed, that *one-third of ' ’-I the fund in the hands of the attorney for the creditors, be applied to the payment of the debts, according to their legal priority, and if that should satisfy all the debts, that the remaining two-thirds be paid over to the plaintiff; but if the one-third shall be insufficient to pay the debts, the remaining two-thirds, or so much thereof as may be necessary, be applied to the payment of the remaining debts, according to their legal priority, and the balance, if any, be paid to the plaintiff.

Elmore and Edwards, for the appellant.

Memmmger and King, contra.

Harper., J., concurred.  