Hooks v. Lee
| Decision Date | 31 December 1851 |
| Citation | 43 N.C. 157,8 Ired.Eq. 157 |
| Court | North Carolina Supreme Court |
| Parties | JOHN G. HOOKS ET AL. v. BLACKMAN LEE ET AL. |
Marriage articles are not considered as settlements, and, as such, to be taken as fully and duly expressing the well considered and final family arrangements by persons about to enter the marriage state.
Such contracts are considered, in a Court of Equity, as but notes of the heads of an agreement, in its nature executory, and the trusts created by it are to be favorably moulded by the Court, so as to effectuate the intention of the parties, in reference to the provisions for themselves for the issue of the marriage, and such other persons, as are apparently within the contemplation of the parties.
They may be modified so as even to have the chasms in them, in not providing, for example, for particular events, supplied, when requisite to effectuate the general intention, if it can be collected, either from the language of the instrument, or from the stipulations usually inserted in such agreements, or from the condition of the particular contracting parties.
The opinion given in this case, at December Term, 1850, (see 7 Ire. Eq. 83,) re-examined and confirmed.
The cases of Gause v Hale, 2 Ire. Eq. 241, and Marphey v Avery, 1 Dev. and Bat. 25, cited and approved.
An interlocutory decree having been made in this cause, at December Term, 1850, overruling the demurrer, the cause was sent down to the Court of Equity of Wayne County. Answers having been filed and other proceedings had, it was set for hearing and transmitted to this Court at the Spring Term, 1851.
Husted and J. H. Bryan, for the plaintiffs .
W. H. Haywood, for the defendants .
This cause was heard in this Court at December Term, 1850, on appeal from a decree overruling a demurrer, as reported in 7 Ire. Eq. 83, and the decree was affirmed, and the cause remanded for an answer, and for further proceedings. The defendant put in an answer setting forth an account of his late wife's personal estate, and then the cause was set down and removed to this Court for hearing. Upon the hearing, the counsel for the defendant again raised the question, as to the construction of the marriage articles and contended, that, as the wife did not dispose of the slaves and other personalty, he succeeds to it, jure mariti, in preference to the plaintiffs, her children by a former marriage. The contract between the parties, is in the following words:
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¦STATE OF NORTH CAROLINA, ¦)¦
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¦JOHNSTON COUNTY, ¦)¦
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This indenture made and entered into, this 14th day of March, 1837, between Blackman W. Lee, of the county of Sampson and State aforesaid, of the first part, and Mary Hooks, of the first named State and county of the second part-- witnesseth. That whereas the said Blackman W. Lee and Mary Hooks, having entered into an agreement of marriage, which marriage is soon to be solemmzed, and the said Mary Hooks being of her own right seized and possessed of a large real and personal estate, is willing and anxious so to execute that the said Mary Hooks shall not be deprived of the use, benefit and profit of the said estate real and personal, by reason of their intended marriage; and the said Mary Hooks being of lawful age to be her own agent. Now, therefore, be it known that, for and in consideration of the premises, and for and in consideration of the sum of one dollar to me, the said Blackman Lee, by the aforesaid Mary Hooks before the sealing and delivering of the presents, the receipt of which is hereby acknowledged, I, the said Blackman W. Lee, do hereby sell, assign and deliver, alien and confirm, and have by these presents sold, assigned, aliened, delivered and confirmed, unto Mary Hooks, aforesaid, all the right, title, estate, interest, and benefit, which I may, by operation of law, acquire, derive, or receive, either in law or equity, in and to the following real and personal estate now belonging to the said Mary Hooks, by the reason of the said intermarriage between the said Blackman W. Lee and Mary Hooks, viz: Twenty slaves, named--Owen, about 27 years old, Pompey, 50 years, Charles, 30, Eliza, 24, Harry, 16, Baltimore, 14, Cader, 10, Henderson, 7, Isaac, 5, Simon, 5, Alvin, 2, Sawney, about one month, Patience, 40, Amerite, 25, Rose, 24, Zeny, 19, Ginney, 10, Margaret, 8, Mary, 3, Martha, 2. Also, one tract of land in Sampson County, containing 830 acres, lying in the fork of Big Cohera and Waro's Swamp, adjoining A. Flemming and Joshua Craddoe; also, two tracts of land in the county of Johnston, being the place where the said Mary now lives, containing 807 acres, bounded as per deed from Susanna Blackman to said Mary Hooks, dated the 21st day of February, 1829; also, another tract of land joining the above, containing 30 acres as per deed from John Eason to said Mary Hooks, bearing date 10th day of December, 1832; also, one close carriage and two horses, to have and to hold all and singular the aforesaid lands, negroes, carriage and horses to the only use and benefit of the said Mary Hooks, her executors and assigns forever, and the said Blackman W. Lee doth solemnly promise and agree to and with the said Mary Hooks, that he will, upon the solemnization of the said marriage, or at any time hereafter, when requested by said Mary, make, execute and deliver all and every necessary title, deed, or conveyance, advised, or directed by counsel, learned in law, more completely and effectually to secure the intention of this indenture, which is entirely to divest himself of right, title, and estate in and to the above mentioned lands, negroes, carriage and horses, so that he nor his creditors shall have any right to sell or contract the same or any part of said lands, negroes or their increase, carriage and horses. It is further agreed and understood by and between the contracting parties aforesaid, that the lands, negroes and chattels may remain in the use and occupancy of the said Blackman W. Lee, he paying therefor by way of hire or rent, the sum of one dollar on the first day of January, in each and every year, if demanded. It is further agreed by and between the parties to this indenture, that, if it shall be desirable to sell or exchange the whole or any part of the above mentioned real and personal property, the said Mary may transfer and lawfully convey the whole or any part of said real or personal property to any person whatsoever, receiving a fair and full consideration for the same, which consideration whether it be in money or property, she shall hold and possess, and keep in the same manner as the property hereby conveyed is to be held and kept, and this indenture to be as binding and legal as if a third person had been appointed as agent or trustee, the said Mary acting as her own agent and trustee.
In witness whereof, the parties have hereunto set their hands and seals, the day and year above written.
Then was this marriage contract duly proven in open Court by the oath of John Eason, and ordered to be registered.
R. SANDERS, Cl'k.
The propriety of bringing up in this manner the same question, which has been solemnly decided on demurrer and appeal in this very case, is worthy of consideration: and it is not to be understood as admitted, because the Court in this instance considers the matter again.
The merits depend on the enquiry, whether the defendant's renunciation of his marital rights in the wife's estates was intended to be partial, or total, except as herein specially excepted.
It is to be noticed at the beginning, that the agreement is not a settlement, and, as such, to be taken as duly and fully expressing the well considered and final family arrangements by these persons of their estates. It consists of articles in the form of covenants between the parties themselves, without any trustee. Such a contract is considered in a Court of Equity as containing but notes of the heads of an agreement, in its nature executory, and it has been long settled, that the trusts created by it are to be favorably moulded in Equity, so as to effectuate the intention of the parties in reference to provisions for themselves, for the issue of the marriage, and such other person as were apparently within the contemplation of the parties. Gause v. Hale, 2 Ired Eq. 241. Such agreements are subject to be modified, so as even to have the chasms in them, in not providing, for example, for particular events, supplied, when requisite to effectuate the general intention, if it can be collected either from the language of the instrument, or from the stipulations usually inserted in such agreements, or from the condition of the particular contracting parties. The case thus standing on articles, it is to be decided just as it would have been, if in the life time of the wife she had filed her bill to have a settlement made pursuant to the articles. They are exceedingly imperfect, and, obviously, the production of an unskillful and ignorant draftsman, and amount only to notes of the actual...
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