This bill was filed in September, 1849, by Alston A. Jones, calling himself administrator with the will annexed of Sarah B. Hurst, and by William A. Whitfield against William B. Hurst, administrator of John B. Hurst.
The bill alleges, that some time in 1836, Sarah B. Whitfield, the testatrix, and John B. Hurst, intestate of the defendant, being about to intermarry, it was agreed between them, that all the property of the said Sarah, including that now in controversy, should be (135) secured to the sole and separate use of the said Sarah and be subject to her disposal, notwithstanding the coverture, and that the right and title thereof should not be changed by the said marriage; while at the same time, it was understood that the said John should be permitted to use the same for the benefit of the said Sarah, but that it should in no event be subject to his debts or disposal. The bill further states, that the said John undertook to have the said agreement reduced *Page 100 to writing; and that the articles, drawn under his direction and intended, as she supposed, to contain fully the terms of the agreement, as above set forth, by mistake, ignorance or fraud, omitted some of the most important matters designed to be inserted therein; among others, the power to be given to her to dispose, as she might think proper, of the estate so agreed to be secured to her separate use; that, through the influence and misrepresentations of the said John, she, being unacquainted with the forms or effect of legal instruments, was induced to sign to said articles, a copy of which is hereto appended, fully believing at the time that these articles were sufficient to carry out the original agreement as above stated. The bill further sets forth, that the marriage above referred to took place in April 1826, that the said Sarah had no issue by the said marriage and that she died in the year 18__, having first executed a paper writing, purporting to be her last will and testament, of which she appointed the plaintiff, Alston A. Jones, executor, and by which she bequeathed to the other plaintiff, William A. Whitfield, a son by a former marriage, all the personal property, settled or intended to be settled on her as aforesaid. The plaintiffs pray that they may be declared entitled to the property under the articles as they now stand and the disposition of the said Sarah, or, if they are (136) not sufficient for that purpose, to have them reformed and made to express the original agreement, and pray that the defendant may account, etc.
The defendant, in his answer, denies that there was any ignorance, fraud or mistake in the preparation of the written articles, mentioned in the plaintiff's bill, or that any influence, fraud or misrepresentation was used to procure the execution of the said written instrument by the said Sarah, but avers that the instrument contains, truly and fully, all the stipulations, agreed upon or intended to be agreed upon, in the original parol agreement.
Replication was entered to the answer and depositions taken. The cause was then set for hearing and sent to the Supreme Court. STATE OF NORTH CAROLINA — Wayne County.
Know all men, that we, John B. Hurst and Sarah B. Whitfield, of the County of Wayne, have this 6 April, 1826, made and entered into the following agreement, viz., that we, the said John B. Hurst and Sarah B. Whitfield, have consented to wed in holy wedlock, and by the laws of North Carolina in such case the right of property is changed; know ye, that we, the said John B. Hurst and Sarah B. Whitfield, have this *Page 101 6 April, before entering into the bonds of matrimony, agreed, that all the right, title and interest of the property now belonging to the said Sarah B. Whitfield, shall not be changed or so altered as to become subject to the payment of any debt of the said John B. Hurst, which he may now owe or may hereafter contract in any way whatever, or be subject or liable to be sold by the said John B. Hurst to his use and benefit, without the consent of the said Sarah B. Whitfield. (137) Nevertheless, the said John B. Hurst has full power and authority to manage the property of the said Sarah B. Whitfield at all times in such manner as shall be most conducive to the said Sarah B. Whitfield; and that a reasonable portion of the products of the property as aforesaid shall be made use of by the said John B. Hurst for the better support of the said Sarah B. Whitfield.
Hereunto I set my hand and seal the date first written.
In presence of JOHN B. HURST. [Seal.]
Test: J. CARRAWAY. This case turns entirely upon the construction of the marriage contract.
After reciting the contemplated marriage, and that, by the laws of this State, the property of the wife is changed and vests in the husband the agreement on the part of the intended husband is, "that the right of property belonging to the said Sarah Whitfield shall not be changed or so altered, as to become subject to the debts of the said Hurst, or be subject or liable to be sold by the said Hurst, to his own use and benefit, without the consent of the said Sarah. Nevertheless the said Hurst shall have full power and authority to the property of the said Sarah in such manner as shall be most conducive to the said Sarah, and a reasonable portion of the products of the property shall be made use of by the said Hurst for the better support of the said Sarah."
There is no power conferred on the wife to dispose of the property by will. On the contrary, the sole object is to disable the husband, by providing that the property should not be so altered as to enable him to sell it without her consent, or to subject it to his debts. There is no intimation of a purpose to enable the wife, or to give her a separate estate, or power to dispose of it by will.
The plaintiff, seemingly aware of this infirmity in the (138) instrument, makes an allegation, that it was the intention to confer this power upon the wife, and if the articles do not confer it, it is averred to have been through the ignorance or mistake of the draftsman. There is no proof of this allegation. On the contrary, the proofs show the intention to have been in conformity to the construction, which we have put on the instrument. There is, therefore, no ground upon *Page 102 which to correct it, and it gives Mrs. Hurst no power to dispose of the property by will.
PER CURIAM. Bill dismissed with costs.