Morton J.
delivered the opinion of the Court. The plaintiff availing herself of the provisions of the 5th Rule, so framed her bill as to deprive the defendant of the usual privilege of answering under oath. And the hearing now comes on upon the proofs in the case. The burden rests entirely upon the plaintiff, and as she has deprived the defendants of some of the means of defence usual in suits in chancery, it would seem but reasonable that she should be required strictly to sustain it.
A new question naturally growing out of the practice under the above rule has been made. The depositions of two of the defendants have been taken and offered in evidence. They contend, that according to the principles and practice in chan eery, they are entitled to the benefit of their statements under oath, and that if the plaintiff may shut out their sworn answers, still they should have the benefit of them in the form of testimony. Now whether the depositions of defendants may be admitted in any case, and if so, under what circumstances they may be received, are questions of considerable interest as well as novelty, and which in the pressure of business during the term we have not had sufficient opportunity fully to consider. And not deeming the testimony offered essential to the decision which we have come to, we expressly waive the question, and proceed to the examination of the cause, without regarding the defendants’ deposition, and precisely as if the same had not been offered.
We cannot discover in the testimony the slightest evidence of any deception practised upon the plaintiff, or of any influence exerted to induce her to execute the indentures, or of any mistake or want of information in relation to their contents or legal import. On the contrary, so far as we can judge from [67]*67the circumstances and the scanty evidence we have, the arrangement was quite as much desired by the wife and her friends, as by the husband and his friends, and the former had quite as influential an agency in preparing and fixing the terms of the settlement as the latter. Indeed we think it apparent that all parties, unless the husband be an exception, were well satisfied with its provisions at the time of its execution and continued so until the misconduct of the husband justified or required the divorce.
This doubtless was a contingency which neither party anticipated, and produced a state of things which was not contemplated, when the indenture was entered into. The action of the contract upon this state of facts being wholly unlocked for, was such as naturally to produce dissatisfaction on the part of the plaintiff. She finds herself deprived of the control and the power to dispose of her property, which she supposes, but for the settlement, she should have had upon the dissolution of her marriage contract. Whether equity can give her relief under these circumstances, is the question which we are now to consider.
In relation to the antenuptial agreement, we find nothing in the testimony which shows the existence, much less the contents, of the letter said to contain it. The only testimony which we have tending to show the existence of any agreement prior to the execution of the indenture, comes from the plaintiff’s mother, who says that four months after the marriage the husband told her, “ that when her daughter became of age he should make over her property to her and that he should trade aloof from it.” This, admitting its entire verbal accuracy, seems to be expressive of a voluntary determination of his own mind, rather than a binding contract with another. It does not purport to be an acknowledgment of a preexisting agreement, but a declaration of present intention. It has none of the characteristics of a contract, not even the parties necessary to enter into one. No court ever could for a moment think of setting aside the express stipulations of a solemn instrument upon evidence so loose and unsatisfactory as this. Indeed it can hardly be said to deserve any weight in the determination of such a question.
[68]*68We are then brought to the consideration of the indenture itself. Jt must stand or fall by its own merits and be judged of solely by its own contents. In most respects it is verj' plain, explicit and intelligible ; and but for the apparent dis crepancy between the recital and the effective parts, there could be no doubt.
In the first place, the instrument, being executed by the husband and wife, clearly conveys and passes the estate to Wainwright. It cannot be doubted that the fee vested in him, and that the plaintiff devested herself of the legal estate. But it was in trust. And the uses and trusts are very clearly expressed and declared.
1. The wife is to occupy and use such part of the estate as she may choose, and to receive to her sole and separate use the income of the residue during the life of the husband, if she should outlive him.
2. If the wife survive the husband, then the whole estate is to be reconveyed to her, and she is to hold it in the same manner as if she never had conveyed it.
3. If the husband survive the wife, the net income of the estate is to be paid over to him, and he is to have substantially the benefit of a tenancy by the curtesy.
4. Upon the death of the husband, the whole estate is to be conveyed to the heirs at law of the wife, so that they shall hold it in the same manner as if she had died seised.
This certainly does not appear to be so unreasonable a settlement as to raise any presumption of coercion, imposition or mistake. It is true a contingency has happened, which in the event of the survivorship of the husband, may subject the income of the property to a use which probably was not contemplated by the parties and appears less reasonable than even the legal disposition of the property. By his misconduct, the husband has forfeited, at law, his right by the curtesy. ' But by the terms of this contract it would seem to be preserved for him. The parties had their option to leave their property to the operation of the general principles of law, or to undertake to regulate and control it by special restrictions and limitations. If they voluntarily and understanding^ elected the latter, equity cannot come to their relief. If they secure the advantages, [69]*69J¡ey must also submit to the inconveniences of such a conventional disposition of the property. Here the wife has had, during her coverture, and is secure of having during her life, the income of her estate, to her own separate use. She has it too secured eventually for the benefit of her heirs. She and they must submit to have the income go to her husband notwithstanding his misconduct, during his life, should he outlive her. We cannot know that he would have executed the settlement upon any other terms, or that it is not much better for the wife than if no settlement had been made. In the latter case, there are many ways in which she might not only have lost the present enjoyment of the estate, but eventually the estate itself to her and her heirs.
But it is contended that a clause in the recital should control the above construction, or that the Court should by it rectify and reform the instrument itself.
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Morton J.
delivered the opinion of the Court. The plaintiff availing herself of the provisions of the 5th Rule, so framed her bill as to deprive the defendant of the usual privilege of answering under oath. And the hearing now comes on upon the proofs in the case. The burden rests entirely upon the plaintiff, and as she has deprived the defendants of some of the means of defence usual in suits in chancery, it would seem but reasonable that she should be required strictly to sustain it.
A new question naturally growing out of the practice under the above rule has been made. The depositions of two of the defendants have been taken and offered in evidence. They contend, that according to the principles and practice in chan eery, they are entitled to the benefit of their statements under oath, and that if the plaintiff may shut out their sworn answers, still they should have the benefit of them in the form of testimony. Now whether the depositions of defendants may be admitted in any case, and if so, under what circumstances they may be received, are questions of considerable interest as well as novelty, and which in the pressure of business during the term we have not had sufficient opportunity fully to consider. And not deeming the testimony offered essential to the decision which we have come to, we expressly waive the question, and proceed to the examination of the cause, without regarding the defendants’ deposition, and precisely as if the same had not been offered.
We cannot discover in the testimony the slightest evidence of any deception practised upon the plaintiff, or of any influence exerted to induce her to execute the indentures, or of any mistake or want of information in relation to their contents or legal import. On the contrary, so far as we can judge from [67]*67the circumstances and the scanty evidence we have, the arrangement was quite as much desired by the wife and her friends, as by the husband and his friends, and the former had quite as influential an agency in preparing and fixing the terms of the settlement as the latter. Indeed we think it apparent that all parties, unless the husband be an exception, were well satisfied with its provisions at the time of its execution and continued so until the misconduct of the husband justified or required the divorce.
This doubtless was a contingency which neither party anticipated, and produced a state of things which was not contemplated, when the indenture was entered into. The action of the contract upon this state of facts being wholly unlocked for, was such as naturally to produce dissatisfaction on the part of the plaintiff. She finds herself deprived of the control and the power to dispose of her property, which she supposes, but for the settlement, she should have had upon the dissolution of her marriage contract. Whether equity can give her relief under these circumstances, is the question which we are now to consider.
In relation to the antenuptial agreement, we find nothing in the testimony which shows the existence, much less the contents, of the letter said to contain it. The only testimony which we have tending to show the existence of any agreement prior to the execution of the indenture, comes from the plaintiff’s mother, who says that four months after the marriage the husband told her, “ that when her daughter became of age he should make over her property to her and that he should trade aloof from it.” This, admitting its entire verbal accuracy, seems to be expressive of a voluntary determination of his own mind, rather than a binding contract with another. It does not purport to be an acknowledgment of a preexisting agreement, but a declaration of present intention. It has none of the characteristics of a contract, not even the parties necessary to enter into one. No court ever could for a moment think of setting aside the express stipulations of a solemn instrument upon evidence so loose and unsatisfactory as this. Indeed it can hardly be said to deserve any weight in the determination of such a question.
[68]*68We are then brought to the consideration of the indenture itself. Jt must stand or fall by its own merits and be judged of solely by its own contents. In most respects it is verj' plain, explicit and intelligible ; and but for the apparent dis crepancy between the recital and the effective parts, there could be no doubt.
In the first place, the instrument, being executed by the husband and wife, clearly conveys and passes the estate to Wainwright. It cannot be doubted that the fee vested in him, and that the plaintiff devested herself of the legal estate. But it was in trust. And the uses and trusts are very clearly expressed and declared.
1. The wife is to occupy and use such part of the estate as she may choose, and to receive to her sole and separate use the income of the residue during the life of the husband, if she should outlive him.
2. If the wife survive the husband, then the whole estate is to be reconveyed to her, and she is to hold it in the same manner as if she never had conveyed it.
3. If the husband survive the wife, the net income of the estate is to be paid over to him, and he is to have substantially the benefit of a tenancy by the curtesy.
4. Upon the death of the husband, the whole estate is to be conveyed to the heirs at law of the wife, so that they shall hold it in the same manner as if she had died seised.
This certainly does not appear to be so unreasonable a settlement as to raise any presumption of coercion, imposition or mistake. It is true a contingency has happened, which in the event of the survivorship of the husband, may subject the income of the property to a use which probably was not contemplated by the parties and appears less reasonable than even the legal disposition of the property. By his misconduct, the husband has forfeited, at law, his right by the curtesy. ' But by the terms of this contract it would seem to be preserved for him. The parties had their option to leave their property to the operation of the general principles of law, or to undertake to regulate and control it by special restrictions and limitations. If they voluntarily and understanding^ elected the latter, equity cannot come to their relief. If they secure the advantages, [69]*69J¡ey must also submit to the inconveniences of such a conventional disposition of the property. Here the wife has had, during her coverture, and is secure of having during her life, the income of her estate, to her own separate use. She has it too secured eventually for the benefit of her heirs. She and they must submit to have the income go to her husband notwithstanding his misconduct, during his life, should he outlive her. We cannot know that he would have executed the settlement upon any other terms, or that it is not much better for the wife than if no settlement had been made. In the latter case, there are many ways in which she might not only have lost the present enjoyment of the estate, but eventually the estate itself to her and her heirs.
But it is contended that a clause in the recital should control the above construction, or that the Court should by it rectify and reform the instrument itself. The introductory part recites, among other things, that the husband had before the marriage agreed with his wife and her guardian, that the estate of the wife “ should be satisfactorily secured to the sole and separate use of the said Nancy, notwithstanding the said contemplated coverture.” We do not perceive that this clause can in any degree vary the construction which we have before given. It would be more consistent and do less violence to the whole language, to construe this in conformity with the subsequent provisions. It would be no great stretch to suppose that it was meant that she should have the separate use in the manner therein afterwards provided.
But it is argued, that this furnishes sufficient ground for reforming the instrument. This power of rectifying and reforming solemn written contracts, is one which by courts of general chancery jurisdiction is exercised very sparingly and only upon the clearest and most satisfactory proof of the intention of the parties. United States v. Munroe, 5 Mason, 577; Hunt v Rousmaniere’s Adm. 1 Peters’s S. C. R. 13.
The general power of reforming contracts never has been exercised by this Court, and it cannot be pretended that as a distinct branch of equity jurisdiction, we possess it. Whether under the head of specific performance we may not, in some cases, exercise a portion of this general authority, we do not [70]*70think it necessary to inquire. When there is a written executory contract, to be carried into effect by a further assurance, settlement, conveyance, or specific agreement, and it is imperfectly or but partially executed, it is not improbable that the Court would compel a full execution of the first contract by rectifying and reforming the articles made in pursuance of it, or compelling a more perfect and complete execution of it. But even if we possess the authority, we are all clearly of opinion that this is not a case which requires its exercise.
The whole ground upon which this claim can be placed, is the clause above recited. There is no parol proof of any written agreement prior to the indenture ; there is no evidence that such a parol agreement was entered into, unless it be the testimony of the plaintiff’s mother, which we have already considered. It must therefore rest entirely upon this recital. Now we are not disposed to doubt that an estate given to the sole and separate use of the wife without qualification or explanation, carries a right of disposal by will and otherwise. Clancey on Husband and Wife, 282 ; Jaques v. Methodist Episcopal Church, 17 Johns. R. 583.
Here the agreement recited was, that the estate should be satisfactorily secured to the separate use of the wife. There was a settlement made, as we have reason to believe, to the satisfaction of all parties. It certainly might have been more favorable to the wife, and less favorable to the husband. But a separate use was undoubtedly secured to the wife, and it was satisfactory, at the time, and a change of circumstances cannot justify a change in an agreement deliberately and fairly entered into.
Besides, where the claim for reformation depends solely on the discrepancy between different clauses of an instrument, unaided by extraneous evidence, how can it be known in which the error lies ? The ground of the action of the Court is the mistake of the scrivener in not having expressed the real intentions and agreement of the parties. Now it is as likely that the mistake would occur in the recital as in any other part of the instrument. And in the case at bar, should we make the alteration prayed for, we should be quite as likely to make a new contract for the parties, as to conform this to their original [71]*71¡mentions. We are therefore clearly of opinion, that there is no ground for the reformation of the instrument and that the plaintiff is not entitled to the relief prayed for.
Bill dismissed.