Cook v. Walker

By the Court.

McDonald, J.

delivering the opinion.

Mrs. Cook took a fee under the deed of settlement. The gift or settlement over of thé remainder is inconsistent with the estate in fee which she holds. There can be no such remainder. Cook vs. Walker et. al., 15 Ga. Rep., 459. That is, the deed of settlement as it stands. The bill alleges that the deed as written does not express the intention of the parties; sets forth their intent and asks that it may be reformed to conform thereto and be enforced as reformed.

The parties to the settlement are not moving in this case, nor is either of them. The complainants are the brothers and sisters and their personal representatives, and are they who take nothing under the settlement as it stands. They allege that the parties to the agreement conveyed the property, in trust, to be held by the trustee for the sole and separate use of Mary Walker, the wife, during her natural life, with the power of managing and controlling said property, free from any restraint and control of her intended husband, the said Elijah Cook, with the power alone of disposing of said property by will, and of appointing to whom said trustee should convey said propeity during her natural life, and in the event the said Mary should die intestate and without making such an appointment, that the same should, at her death, become the property of and belong to the children of said Mary, if any, and if none, then to the mother, and brothers and sisters, and representatives — to-wit: children, with the rents and profits and the increase of the same.' They allege that the contract, when written, was intended to speak the before stated sense, meaning and understanding, which are not correctly expressed in the agreement as drawn, but on the contrary, the writing is a wholly distinct contract or agreement and gives the property of the said Mary, its increase and its profits to the said Elijah Cook, and defeats the limitation over to complainants, directly in the face of and contrary to the aforesaid explicit and well understood intention of the said Mary and Elijah, agreed on before marriage, &c. This, with the prayer as above stated, is the complainants’ case.

The marriage settlement, which they apply to the Court of Chancery to reform, embraces them within its provisions, but it is expressed in such terms that they can never take a benefit under it. It is insisted that though no valuable consideration moved from them by which the settlement might be supported, yet the party from whom the consideration proceeded did intend to provide for them, that they are therefore within the consideration of the contract, and a Court of Chancery, if the writing be so unskilfully drawn or executed, as not to secure to them the rights intended, will reform it.

This position, whatever opinion may be entertained of it as sustained by reason, is not supported by authority. The. great principle, which is well settled, that a valuable consideration is requisite to put a Court of Equity in motion, interposes against the plaintiffs. The reply to them by the Court is, that neither you, nor any person under a natural or moral obligation to provide for you, contributed to the considerarion of the contract whose defects you propose to heal, and you cannot, therefore, be heard. Parties between whom there is a valuable consideration, may covenant to do an act beneficial to a stranger, and yet that stranger, however strongly he may have been regarded by the parties, cannot enforce the contract. Colyear vs. Mulgrave, 2 Keene, 81. The complainant in that case was a natural child endeavoring to enforce in Equity, the covenants of her father to transfer the sum of £20,000, to a trustee for the benefit of herself and three sisters, also natural daughters. The Court held, that being natural children, their claim was founded on no consideration either valuable or meritorious, and was entitled to no relief. See also Hill vs. Gomnae, 1 Beavan 540. They were volunteers. The settler, according to the ethics of the laws of England, was under no natural or moral obligation to provide for them. On that account, although they were special beneficiaries under the deeds, they were strangers to the covenants for their benefit and were not allowed to enforce them. In the case of Osgood vs. Strode, Lord Macclesfield stated the rule to be “that the marriage and marriage portion support only the limitation to the husband and wife and their issue, this is all that is presumed to have been stipulated for by the wife or her friends.” 2 Peer Williams 225. Hence, a Court of'Equity would reform or decree a specific performance of a marriage agreement at the instance of the husband or the wife, or the issue, and the heir at law of either, but not at the instance of any one else. It would decree, at the instance of the husband or wife, because they are parties, and of the issue, because they are embraced within the scope of the marriage consideration. It would decree at the instance of the heir at law of either of the parties who would, if in life, be entitled to enforce it, not because he was within the contemplation of the parties when they entered into the agreement, but because if the agreement had been carried out he would have been entitled as heir at law on the death of the party. If a party, entitled to move in the matter, apply to a Court of Equity to reform or enforce the contract, the Court will enforce it as a whole, in favor of all who were intended to be embraced within its provisions, whether they come within the influence of the settlement or not. Such was the case of Davenport vs. Bishop. In that case, the husband, on the death of the wife without children, applied to the Court to have the contract performed. The wife had a power of appointment, in that case, which was never exercised, and the husband, on surviving, was entitled to a life estate with remainder to a niece of the wife. The question was whether the decree of specific performance should be confined to the life estate of the husband, or extend to the provision for the niece, who was also dead. It was held that the subject being before the Court, and no creditor objecting to the decree in favor of the niece, the whole should be performed. 2 Y. & Call. Chan. C. 451. But that authority does not support this case. A party to the contract competent to ask for the enforcement of it was plaintiff, and the Court having possession of the entire matter would enforce it as a whole or not at all. The objection here is, that the complainants not being within the scope of the marriage consideration cannot move at all. Such, however, was not the decision of the Judge below, and we reverse his judgment. The complainants are not entitled to the relief they ask. They are not parties to the agreement, they are not the issue of the marriage, and they are not the heirs at law of the wife. The husband is her heir at law. Cobb 294.

Judgment reversed.