The decree of the chancellor in this case must be affirmed, for a variance between the allegations and the proof.
The bill avers, that the second deed, “ exhibit B,” was intended to conform in its provisions to the first deed, “ exhibit A.” The first deed vests the title in Mrs. Flanagan and her children during her life, and at her death in *511her children. The second deed vests the entire title in the heirs of Mrs. Flanagan,' then Mrs. Hylton, excluding her entirely. Heirs, in this instrument, means children. The only witness, Mr. Ford, who speaks at all as to the intention he had in drawing the second deed, says he had never seen the first deed; and Mrs. Hylton herself gave the directions under which he drew the deed. There is no evidence of any mistake in the frame of the deed, by which Mrs. Hylton was omitted as one of the grantees. This statement of the case presents a fatal variance between the allegations and the proof. — Lockhart v. Cameron, 29 Ala. 362, and authorities cited.
The first deed, marked “exhibit A,” secured Mrs. Flanagan’s interest in the slave to her separate use and enjoyment; and this separate estate was not confined to any particular coverture. When she became discovert, and married a second time, the property, so far as she held any interest under that deed, was still her separate estate. — See 2 Bright on H. & W. 204-5. The gravamen of this bill is, that the slave Linah was received in exchange for Cicely; and that the trusts created by the first deed, extend to and embrace the slave Linah. On this aspect alone have the complainants any right to relief.
This view, under the proof in this record, places Mrs. Hylton in an inextricable dilemma. If, under the exchange of slaves, her interest ceased to be her separate estate, then the marital rights of her husband attached to such interest upon her intermarriage with him, provided she had the slave in actual or constructive possession. This, of course, would destroy all right in her; and the deed afterwards executed to her heirs, placed her in an attitude no more favorable to the relief which she seeks.
If, on the other hand, the trusts of the first deed extend to the slave Linah, then, her interest being a separate estate', she had the undoubted right, notwithstanding her coverture, to dispose of that interest as a feme sole. Having the title conveyed to her heirs, [children,] as by the second deed was done, she could no longer assert any *512interest in the slave. — 2 Bright on H. & W. 220, et seq. ; Fettiplace v. Goryn, 1 Vesey, jr. 46.
The decree of the chancellor is affirmed.