On 11 January, 1832, articles of agreement (242) were executed between James O. Hale of the first part, Ann Council Gause of the second part and the *Page 177 plaintiff, Samuel C. Gause, of the third part, whereby, after reciting that the said Ann was seized in fee of certain lands in the county of Brunswick and possessed of certain slaves therein named, and that a marriage was about to be had and solemnized between the said James O. Hale and the said Ann, it was covenanted and agreed that the said James and Ann, in case the intended marriage should take effect, should and would by some good and sufficient conveyance settle and assure the said lands in and to the said Samuel to the use and behoof of the said Ann during the term of her natural life, and from and after her decease to the use and behoof of the heirs of the body of the said Ann by the said James lawfully to be begotten, and for the default of such issue, then to the use and behoof of the said Ann, her heirs and assigns forever, and for no other use, intent or purpose whatever; and that they should also, by like good and sufficient conveyance, settle and assure the before-named negroes in and to the said Samuel, to the use and behoof of the said Ann for and during her natural life, and from and after her decease to the use and behoof of the heirs of the body of the said Ann by the said James O. Hale, lawfully to be begotten, and for default of such issue, then to the use and behoof of the said Ann, her heirs and assigns forever, and for no other use, intent or or purpose whatever. The contemplated marriage took effect, no conveyance was made, as stipulated by the marriage articles, and the husband ever since the marriage has remained in the use and enjoyment both of the lands and negroes, the subject-matter of said articles. In 1838, the said husband having sold one of the said negroes and negotiated for the sale of others, the trustee (Gause) filed this bill against Hale and his wife, wherein he prays that conveyances may be made under the directions of the court so as to carry into execution the true intent of the marriage articles and assure the land and negroes to the uses, trusts and purposes thereby contemplated; that it may be ascertained what negroes yet remain of those named in the articles and what issue they have had; that the defendant Hale may be compelled to substitute property of equal value to (243) the negro by him sold, which property shall be included in the assurance or assurances to be directed; that the plaintiff may in the meantime be secured against any further sales to be made by the said defendant, and for general relief. To this bill a joint answer was filed by Hale and wife in which the execution of the marriage articles is admitted, but they say that these were signed without noticing their contents; that it was represented to them that the object was to secure the property to Mrs. Hale, and if she had children by the marriage, to these *Page 178 children; and if she had none, then to her husband if she should so choose; that they were entirely ignorant that any conveyances of the property were after the marriage to be made to the plaintiff or that he was to have any control over the property. The defendant Hale admits the sale of the negro woman Tinah, but excuses it on the ground of necessity, and both the defendants in said answer declare a strong repugnance that the plaintiff should be their trustee.
No evidence has been offered which supports the allegation (if such an allegation can be understood as made in the answer) that an imposition was practiced on the husband, and much less on the wife, in obtaining the execution of the articles, and nothing is shown, except the opinions of witnesses, that the plaintiff is an unsuitable trustee, wherefore the trusts declared or intended by the articles should not be effectually secured. In regard to this objection we would observe that these vague opinions weigh nothing; that he is the trustee designated in the articles, whose duty it is to see them carried into execution, and that should he hereafter prove incompetent or unfaithful he will, on a proper case shown in a regular proceeding for that purpose, be superseded and another appointed in his stead.
In construing marriage articles courts of equity are not restrained by the technical rules which prevail in limitations of legal estates and executed trusts, but indulge in a liberal interpretation so as to secure the protection and support of those interests which from the nature of the instrument it must be presumed were thereby intended to be secured. In the (244) present case these were the interests of the wife and of the issue of the marriage. The manifest object of the articles is to put these beyond the control of the husband. Conveyances must therefore be prepared by which there shall be secured to Mrs. Hale an estate during her life free from the debts of her husband and during the coverture exempt from his power, with a limitation to such children as may be born of the marriage, equally to be divided between them, and in case of the death of any of them under age, or, if females, unmarried and under age, with limitations over to the survivors and survivor and with an ultimate limitation over to Mrs. Hale in case there should be no such issue of the marriage or none living at her death.
There should also be a reference to inquire and report the slaves and the issue of the slaves, to be included in the settlement, and also the value of the slave sold by the defendant *Page 179 James, and what property of equal value should be substituted in the place thereof, and the cause is to be retained for further directions.
PER CURIAM. Decreed accordingly.
Cited: Hooks v. Lee, 43 N.C. 161.
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