Dunn v. Tharp, 39 N.C. 7, 4 Ired. Eq. 7 (1845)

Dec. 1845 · Supreme Court of North Carolina

39 N.C. 7, 4 Ired. Eq. 7

ANNA DUNN vs. HARDY W. THARP, ADM’R., &c.^*

The specific execution of marriage articles, and the reformation of settlements executed after marriage, because of their not conforming to articles entered into before marriage, are among the ordinary subjects of Equity jurisdiction.

Parol agreements, in consideration of marriage, entered into before our statute of 1819, Rev. St. ch. 50, sec. 8, arp valid, and will be enforced in Equity. •

This case, after being set for hearing, was transmitted from Franklin Court of Equity to this Court, at June Term, 1837.

Tbe plaintiff is the widow, and the defendant the administrator, of the late William Dunn, and the bill is. brought for the correction of an error in u marriage settlement, executed by the deceased, for the benefit of the plaintiff. The case made in-the bill is, that, previous to the intermarriage of the plaintiff with the deceased, and during the treaty for the said marriage, it was agreed between them, that a settlement should be made of all tbe slaves then belonging to the plaintiff, upon trust for her, should she survive her husband, and for him, should he survive the plaintiff; and it was expressly agreed and contracted by the deceased, in consideration of sucb intended marriage, that a proper deed should be executed, so as to convey tbe legal estate in tbe said slaves upon the trusts aforesaid; that the marriage contemplated took effect, (several years before the year 1819,) but that from the confidence, which the plaintiff reposed in tbe promises of the deceased, the hurry and bustle of tbe wedding preparations, and the want of friends of tbe plaintiff, skilled in business, to cause the proper deed to be prepared, none such was executed, nor even any written articles drawn up previous 'to the marriage; that, some years afterwards, the plaintiff’s husband, intending in good faith to carry out into execution the agreement so made, caused an instrument to be draughted, whereby he was to convey unto certain trustees, the slaves aforesaid, upon the trusts aforesaid, and in the belief that the instrument, draughted in pursuance of these instructions, fully corresponded therewith, he duly executed the same ; that, recently, her husband had died, and the defendant had administered on his estate; that, after her husband’s death, it was discovered, that, through some inadvertence of the draughtsman, two of the negroes intended to be included in the deed, Polidore and Caroline, were omitted, and that in consequence of this omission, the defendant claimed to hold, and did hold, these two negroes, as a part of the estate of his intestate.

Badger, for the plaintiff.

E. Hall, for the defendant.

* The opinion in this case was delivered-at June Term, 1837, but has not heretofore been reported.

Gaston, J.

The specific execution of marriage articles, and the reformation of settlements executed after marriage, because of their not conforming to articles entered into before marriage,- are among the ordinary subjects'of equity jurisdiction. Parol agreements in consideration of marriage are within the statute of 29th Charles 2nd, and, therefore, in the English Courts, they are not executed, nor do they constitute a ground for correcting settlements actually made. But for that statute, such agreements, clearly established, would have the same claims to be enforced, as if they h,ad been manifested by writing. The reason of this provision in the statute was to prevent those unguarded expressions of gallantry and improvident promises thoughtlessly made, or artfully procured during courtship, being perverted into deliberate and solemn engagements, conferring a right to compel performance. When the alleged agreement in this case was made, we had no statute denying efficacy to it, unless reducedto writing. The only difference, therefore, which We can regard as existing between such an agreement by parol, and one in writing, is a difference in the degree of proof necessary to establish it. As an agreement, peculiarly liable to misapprehension and misrepresentation, it calls for the greatest caution in the consideration of the evidence, by which it is sought to be made out. In the present case, the extrinsic proofs are as full, clear, and satisfactory, as could have been desired,, and the instrument itself furnishes no slight testimony of the alleged mistake, for, after conveying to the trustees seven negroes, by name, it proceeds to declare the trusts with respect tó “ the nine negroes aforesaid.”

There is no contest here with cj-editors or purchasers, but it is one wholly between the widow and the administrator of the deceased.

The Court is of opinion, that she is entitled to have the mistake in the settlement corrected, as prayed for in her bill.

Per Curiam.

Decree accordingly.