Ferrill v. Perryman ( 1866 )

Lumpkin, C. J.

The real conflict in this case is, whether the choses in action which belonged to Mrs. Wilkinson at the time of the intermarriage, were secured to her by the two deeds to which Mr. Perryman became a party, he being entitled to the use of the money only during his wife’s life time ?

These instruments,. copies of which are attached to the pleadings, are not very accurately or artistically drawn. Whether the want of perspicuity was intentional, as insinuated'by complainant’s solicitor, we know nothing. Upon the casual perusal of these documents, the reservation ^* of the marital rights of loth parties to the property of the other, seems to have been intended ; and so, upon the first blush, .the choses in action belonging to Mrs. Wilkinson, were not included in the writings. But upon a closer scrutiny of the papers, we are not satisfied that such is the fact.

We think it apparent from the instruments, that the intention of the parties was and is to secure all of Mr. Perryman’s property, of whatsoever kind, to him and his heirs, free from any marital rights therein to le acquired by his intended wife; and in Wee manner, to secure to Mrs. Perry-man all of her. property, of whatsoever kind, to her and her heirs iand legatees free from any marital rights therein tobe acquired by Mr. Perryman.

In the clause stipulating for the husband, his estate is spoken of as “ a considerable estate, real and personal,” to wit, the following negroes—(naming them); yet it is evident that all his estate real and personal is intended.

And on the part of the wife it is said, that she “ is in like manner possessed of a considerable estate of personalproperty,” the following negroes, to wit—(naming them).

Row, does the naming of these negroes, on the side of Mr. Perryman, so limit the subject-matter of the contract as to them, as to exclude all else of personal property ? The Court below held, that the naming of Perryman’s (the husband’s) negroes did not have that effect as to Perryman’s side of the agreement: why should it on Mrs. Perryman’s part ?

Then, again, it may be argued from the fact' that her property in expectancy is conveyed and secured to her in this instrument, is evidence that all her personal propeperty m presentí was intended to be conveyed.

In the clause of the instrument giving the future husband of the property intended to be secured to the future wife, it is described as “ the said personal property, estate and negroes of said Mary O. Wilkinson above described, showing, it would seem, that more is embraced than negrees in presentí, and bequests to her in futpro. Because it is referred to as the said (the before described) “personal property, estate and negroes,” and referring to the property in presentí because described as the property of the said Mary O. Wilkinson.

If you limit the settlement to' the negroes alone, then the words “ personal property and estate” are surplus words and have no meaning; and if the settlement, to negroes and future bequests, then the words “estate and negroes” cover the conveyance, and the words “ personal property” are surplusage and receive no meaning. Whereas, interpreted in the manner contended for by the other side, all the words used have their appropriate meaning and effect, not otherwise.

It is insisted that, because, in the after conveyance to the trustee in the same instrument, the subject-matter is confined to negroes, that, therefore, nothing else. passed or was intended to pass. But this does not necessarily follow. The covenant between Perryman and wife should be considered, as well as the habendum to the trustee; and the construction (Chitty on Contracts, 20,) is to be on the entire instrument, and not merely on disjointed parts, so as to get at the true intention of the parties, as gathered from the whole instrument.

And Courts of Equity, especially, will effectuate the true intent aud meaning of the parties to the settlement, irrespective of the words used by them in attempting to carry the agreement into effect.

Might not this be treated as a mere clerical omission, because it is thereafter, and in the same instrument and clause, provided that, in the event she should survive him, (Perryman) that then the trustee should re-convey all the estate and property then held.

Again, in giving Perryman power to collect, use and have the annual profits, etc., the words used are, “ to collect and receive, from time to time, the use, hire, profits, and interest of the trust estate,” seemingly referring to the fact that her choses in action had been conveyed to the trustee.

Mr. Perryman, by a supplemental deed executed after marriage, makes a relinquishment of part of the rights secured to him under the agreement, in the event of his surviving his wife. The preamble to the supplemental deed explains the first, and favors the construction insisted upon by Mrs. Perryman’s counsel. It recites that “ whereas, there is a clause in the above recited deed that gives to me the use and enjoyment of the property of Mary O. Wilkinson, during my life, in the event of my surviving her; and, whereas such was not the intention of the parties to the deed at the time the same was made, I now,” etc.

It is argued that this addenda is ¡per se, a good declaration of trust frorp Mr. Perryman to his wife, as to property existing at the time of the marriage. 10 Got. B., 541-43. .

The receipt given by Mr. Perryman to Spicer for money collected on Wilkinson’s notes, owned by Mrs. Wilkinson at the time of the marriage, has a tendency _ to establish, the trust, and that such was the understanding of Mr. Perryman at least.

Taking, therefore, the allegations in the bill, which are to be considered as tiue, the receipt given by Perryman to Spicer, the bill should not be dismissed on demurrer, but the case should be answered. We do not wish to be understood as committedpipon the merits. We have formed no •settled opinions upon the ^ubjeet.'

As to the objection that Spicer should be rpade a party complainant, if the bill has equity in it it should not be dismissed for want of proper parties, especially on demurrer.

J udgment reversed.