By the Court.
Lumpkin, J.,
delivering the opinion.
This was a claim case, tried before Judge Floyd, in Bibb Superior Court, May term, 1847, in which the defendant in error was plaintiff in execution, and George C. McNeill, Edmund Blake and John Anderson, defendants in execution, and Samu'el R. Blake, trustee of Edmund Blake, and Eleanor Blake his wife, formerly Eleanor Harris, was claimant.
• Several ji. fa’s, in favour of Richard Irwin, were levied upon divers slaves, as the property of said Edmund Blake, which were claimed by the said Samuel R. Blake, in his character of trustee, as aforesaid.
• Upon the trial, the executions, with the levies thereon, were tendered and read in evidence; and it was proven by the sheriff, [362]*362that the slaves in dispute, were in the possession of Edmund Blake at the time of the levy. The testimony in behalf of the plaintiff was then closed.
The claimant then introduced a marriage contract, and read the same'in evidence, as follows:
“.This Indenture, of three parts, made the loth day of November, 1838, between Edmund Blake, of the county of Bibb, and State of Georgia, of the first part, and Eleanor Harris, widow of the late Jeremiah Harris, and now of the county of Houston, of the State aforesaid, of the second part, and Nathan H. Beall and Samuel R. Blake, of the third part, Witnesseth, that whereas a marriage is intended to be had and solemnized between the said Edmund Blake and Eleanor Harris ,• in consideration of the said intended marriage, and of the sum of five dollars, to the said Eleanor Harris in hand paid, and for the providing and securing a competent provision of maintenance for the said Eleanor Harris, in case she should survive the said Edmund Blake, her intended husband ; and for settling and assuring the property hereinafter mentioned, to such uses, and upon such trusts, as are hereinafter expressed and declared ; the said Eleanor Harris, with the consent of the said Edmund Blake, her intended husband, and they, and each of them, have, and by these presents do grant, sell, alien and confirm, unto the said Nathan H. Beall and Samuel R. Blake, and their assigns, as trustees, the following property and estate, to wit: An interest of one-half in a lot or parcel of land, containing three hundred acres, more or less, situate, lying and being, in the county of Houston, State aforesaid, known as lot number —, in the tenth district of said county, and described particularly in a deed of transfer and conveyance, from Allan Windham to Eleanor and Thomas W. Harris, containing three hundred acres, more or less; together with all the houses, buildings, furniture, stock, utensils, emoluments, and all the appurtenances, to the said lot and farm belonging or appertaining; also, the following negro slaves, viz: Hannah, Kizzy, Dicey, Joe, Allen, Jack, Elbert, Lewis, Blenheim, Sylla, Sibby, Caroline, Sappho, and Patience, now in the ownership and possession of the said Eleanor, together with their issue and future increase, and all the right, title, and interest to the said slaves and their issue; also, all right, claim, interest and profit, to certain property, arising under the will of her sister, Rebecca Bostick, now in controversy, and in suit brought by-, against-, [363]*363in - Superior Court, and all profits, interest, or advantage, which has, or may accrue to the said Eleanor Harris, in her right, as heir or legatee of said estate, as also what she may derive hereafter by legacies, &c. To have and to hold the said property, hereinbefore specified to be hereby granted and conveyed, to them, the said Nathan H. Beall and Samuel R. Blake, their heirs and assigns, to such uses and upon such trusts, and to, and for1, such interest and purposes as are hereafter declared, mentioned and expressed of and concerning the same ; that is to. say — to the use and behoof of the said Edmund Blake for the term of his natural life ; and from and after the decease of the said Edmund Blake, if she, the said Eleanor Harris, his intended wife, should survive him, then to the use and behoof of the said Eleanor Harris, his intended wife, in lieu and satisfaction of her dower or child’s part, to which she may have claim through the statute of said State, in all estates of free hold and inheritance of which the said Edmund Blake may die seised or possessed. And it is hereby further declared and agreed, by each and every of the parties to these presents, that she, the said Eleanor, should she survive the said Edmund Blake, shall have full right and power to dispose of, by will, one-half of the before mentioned property and estate, unless there should be a child or children to have the whole of the said property and estate hereinbefore mentioned ; but should the said Edmund Blake survive the said Eleanor, his intended wife, without issue, then, the estate and trust hereby created, shall subside and cease at his death, and the legal unite with the equitable estate and interest in said property hereinbefore recited and specified, and it shall go and vest, as it would have done by and after the marriage of the said Edmund Blake and Eleanor Harris, if no trust or settlement had been made, and shall regularly descend to the heirs of the said Edmund Blake, lawfully begotten, forever; and it is further agreed, by all and each of the said parties, that the said Edmund Blake shall occupy, possess and retain possession of the before mentioned property, and shall receive and enjoy all rents, profits and emoluments accruing therefrom, and that the said Edmund Blake shall exercise all reasonable acts of ownership over said property, and by and with the consent and advice of the said Nathan H. Beall and Samuel R. Blake, may modify and change the description and species of property, if, by such change or alteration, he can enhance the value thereof, or increase the general value and amount of property granted,and conveyed originally, as [364]*364herein, specified; and it is hereby likewise declared and agreed, by all and each of said parties, that it shall, and may be lawful for the said Edmund Blake and Eleanor Harris, his intended wife, and the said Nathan H. Beall and Samuel 11. Blake, at any time and times hereafter during their joint lives, under their respective hands and seals, and attested by two or more creditable witnesses, by and with the consent of said trustees, to revoke, make void, alter, or change, all and every, or any, the use or uses, estate or estates, herein and hereby before limited or declared, or intended to be limited or declared,' of, and in, the property hereinbefore recited and specified, and.to declare new and other uses of the same, or of any part or parcel thereof; any thing herein contained to the contrary thereof, in anywise, notwithstanding.”
Signed and sealed, &c. by the parties.
Also, the following post-nuptial instrument, being a modification of the foregoing:
“ Georgia, > Whereas, certain articles of agreement, entered Bibb County, (into between Edmund Blake, of the first part, and Eleanor Harris, of the second part, and Nathan H. Beall and Samuel R. Blake, of the third part, for the settlement of property upon the contemplated marriage of the parties of the first and second parts, on this 15th day of November, 1838, did reserve to the said parties of the said settlement, the right to-revoke, make void, alter, or change, all or every, or any of the uses or estates therein and thereby before limited and declared of and concerning the property therein specified, and to declare other and new uses of the same or any part thereof; now, by virtue of said reservation, and in conformity thereto, it is agreed mutually between the parties to the said agreement, that the said Eleanor shall have the power, in any event whatever, of disposing of, by will, one half of said property mentioned and specified in said original agreement, hereby revoking, altering and amending the clause of said articles, which recites, that if the said Edmund Blake survive the said Eleanor Harris, his intended wife, without issue, then the estate and trust thereby created, shall subside and cease at his death, and the legal unite with the equitable estate and interest in said property therein before mentioned and specified, and shall go and vest as it would have done by and after the marriage of the said Edmund Blake and Eleanor Harris, if no trust or settlement [365]*365had been made, and shall descend to the heirs of the said Edmund Blake, lawfully begotten, forever, so as to vest in the said Eleanor, in that or in any other event whatsoever, the full and absolute power of disposing of, by will, of one half of said property.”
Signed and sealed &c.
These instruments were duly proven, and recorded in the proper office.
The claimant next offered, and was allowed to read, the certificate of bankruptcy and discharge, awarded to the said Edmund Blake, by the proper court, in order to show that he was released from all liability upon said Ji.fas. It was admitted, that the property levied on was not returned in his schedule by Edmund Blake, to the commissioners in bankruptcy, he having been advised by his counsel, E. A. Nisbet, Esq., that it was not liable to be so returned.
It was in proof, that the executions levied on the property, had been bought up for Nathan H. Beall, one of the trustees named in the marriage deed, at the sum of fifty dollars each, and were proceeding at his instance, and for his benefit. It was also in testimony, that the property in controversy was in the possession of Mrs.'Blake before the marriage, and that after the marriage it went into the possession of Blake and his wife, who have since lived together, and that it all came by Mrs. Blake, and belonged to her before the marriage.
Samuel J. Ray, testified, that he was present at the execution of the marriage contract, and that Nathan H. Beall was present likewise. He also witnessed the marriage, which was subsequent to the execution and delivery of the deed.
The case was then submitted to the jury, and claimant’s counsel requested the Court to charge the jury, that,
1. If Beall purchased said executions against Edmund Blake, after he was constituted trustee by said contract, it was a satisfaction of said Ji.fa’s.
2. That if Beall purchased said fi. fas, after he was such trustee, the same can never be enforced agaiqst the trust property.
3. That there never vested in said Edmund Blake, such a title to said property, under and by virtue of said marriage contract, as could be reached by levy and sale at law.
4. That there never vested in the said Blake, such a title or right as could be levied on at law, during the life of Mrs. Blake.
[366]*3665. That by virtue'of the discharge in bankruptcy, said Blake was discharged from all his debts, and that all his property was also discharged from debts then existing, unless some legal lien was then existing against said property, and fixed.
6. That during the life of Mrs. and Mr. Blake, nothing but an equitable'right and title to said property vests, under said marriage contract, in said Edmund Blake, which is not subject to legal liens, nor to levy and sale at law.
All which tlie said Court refused to charge; but then and there charged and decided the contrary tobe the law; that said property was and is subject to levy and sale at law, for the debts of the said Edmund Blake.
To which the counsel for the claimant excepted.
Counsel for the plaintiff in error, submit two questions for the decision of this Court: 1st. Is the property levied on and claimed subject to levy and sale at law? and 2nd. was it subject to the executions levied ?
[1.] This Court is unanimously of the opinion, that the judgment of the Circuit court should be reversed, on the ground that the use was not executed, but that the legal estate continued in the trustees, and that the equitable interest of Edmund Blake, the debtor, was not subject to levy under these or any other executions.
It will be perceived that there is no controversy, even between counsel, as to the liability of Blake’s interest in this property, whatever it may be, to pay the debts which he has contracted since his bankruptcy. The only question is, as to the mode or form to which recourse shall be had to subject this interest; whether it be such a legal estate under the marriage settlement, as may be seized and sold at law, or is it a mere equity, and one which can only be made liable for debts in and through a decree of a court of equity %
What are the facts and circumstances under which this instrument was made 1 and what are its terms % Mrs. Harris, a widow lady, being possessed of considerable property, proposes entering into a contract of marriage with Mr. Edmund Blake, who, as is apparent by a comparison of the dates of the deed of settlement, and of the judgments, was largely indebted at the time; and this fact is presumed to have been known, as the judgments were matters of record. The substance of this agreement is, that she conveys her property to Nathan IT. Beall, her brother, and Samuel R. Blake, the son of her intended husband, upon the following [367]*367trusts and uses, to wit, for the use of her intended husband for life; if she survive him, to her use for life, with the power of disposing of one half thereof by will, the other m'oiety to go to his children; if he survive her, the trust to cease and subside at his death, and the legal to unite with the equitable estate, and to descend, the whole to his children. It is further provided, that should there be offspring,'the fruit of this union, the entire property is to vest in it or them. It is further declared, that Edmund Blake is to have the entire use and possession of the property, and to exercise all reasonable control over the same; also, he is at liberty to change it, by the consent of the trustees, provided it is for the benefit and advantage of the trust estate. It is further declared, that the trustees and Mr. and Mrs. Blake, may, at any time, in conjunction, re-settle this property to such other uses and purposes as they may see fit; and the record discloses, that some few years thereafter this was done, allowing Mrs. Blake the right to dispose of one half of this property by will, under any circumstances; that is, whether she survived her husband or not.
The first point to be considered, is, what was the intention of the parties to this contract? For not only must this intention prevail, if it contravene no rule of law, in all contracts, but more especially in marriage settlements, which, like wills, are liberally construed, so as to effectuate the purposes for which they were executed, especially so as to protect the interest of that party for whose benefit they are made. Atherley, 27 Law Lib. 48, 58, 64.
As to the intention of the parties, it is not a matter of inference or conjecture; the instrument itself expressly declares at what time the legal estate shall unite with the equitable; not in Blake during his life, but at his death, upon his surviving his wife without children by her; so that, if the question of construction rested upon intention, the conclusion would be easy. But a grantor or testator may intend to do a thing, and yet not do it; and the courts are frequently obliged to say voluit, sed non dixit.
Are, then? the terms of this instrument so clear and explicit as to vest the legal estate for life in Edmund Blake, contrary to the avowed intention of the parties ?
In behalf of the creditors, it is insisted, that even if the Statute of uses, and the 10th section of the Statute of frauds, did not apply to personalty, that still the very deed itself conveys the possession to the use, and transfers the use into possession, thereby making Blake the complete owner of the property, as well in law as [368]*368in equity. And it is true, that the entire use is given to him, but it is the use only, and not the corpus. It is true, that he is entitled to the possession, but that possession is evidently not an inherent right by virtue of the estate which he held, hut bestowed upon him as the agent rather of the trustees. It is likewise true, that he has the privilege of exercising reasonable ownership over this property; but if the defendant had an absolute indefeasible estate for life, in this property, wherefore the necessity of giving him the right of possession 1 and why this restricted, qualified ownership 1 Can reasonable ownership mean any thing more or less than such ownership as is not inconsistent with the paramount title of the trustees ?
So much for the case in behalf of the plaintiffs in execution, and for those clauses in the instrument which seem most to favour their position.
It is difficult to lay down a distinct rule, showing when a trust is and when it is not executed. The cases of Carwardine vs. Carwardine, 1 Eden R. 33, and Leicester vs. Leicester, 2 Taunt. R. 109, would prove, that it is not sufficient to prevent the estate from being executed that the trustee has something to do; but it would seem, that whenever the object of the trust would be defeated by its being executed, as in cases of trusts for married women, or to preserve contingent remainders, or where the trustee has some discretion to be exercised in relation to the estate; or where there is some object to be effected by the estate’s remaining in the trustee,'that in all such cases, the instrument will be construed not to convey an executed trust. Posey vs. Cook, 1 Hill R. 414; Laurens vs. Jenny and others, 1 Speer Law R. 366; McIntyre vs. Agricultural Bank et al., 1 Hill Ch. R. 111.
And do not most, if not all, of these reasons apply in the present case"1? Here are contingent remainders to be preserved; should there be children born, the fruit of this union, the entire estate, by the deed, will vest in such offspring. And is there not an object to be accomplished by continuing these trustees 1 They are not only to superintend the property, and see to it that it sustains no injury during the continuance of the life interest of Blake, either by an improvident sale, or any other act of ownership, but the title is to remain in them that they may be ready at all times to unite with Blake and wife, as they have once done already, in re-settling this estate upon such other trusts as they may see fit. How could this be done under a sale at law % But Blake himself cannot sell [369]*369or dispose of this property without the consent of the trustees ; how can the agent of the law do more 1 Can the sheriff sell, nolens volens ? we apprehend not. The possession of Blake, then, is not inconsistent with the rights of the trustees, and did not subject the property to be seized for his debts. Cadogan vs. Kennett, 2 Cowp. R. 432.
But I confess, that to my mind, there are other and higher objects to be accomplished by holding, that the legal estate shall remain in the trustees. It is .on account of Mrs. Blake, from whom the whole of this property was received, and upon the credit of which these debts were not contracted. Marriage settlements have the sanction of immemorial usage, and of the most enlightened part of the human race; and this Court would be recreant to its duty to permit the rules of the law to be strained to defeat the end for which this contract was intended. It is true, that the use of this property is given to the husband for life ; but then he cannot aliene without the consent of the trustees and for the advantage of the trust estate. While this is the case, he cannot deprive the wife of a maintenance, even if he desired it, out of this property. Her interests, therefore, are essentially protected by this deed, independently of the ''power reserved of re-settling -the estate. To allow it, then, to be sold at law, to pay the husband’s debts, would be to defeat the very end for which the trust was created.
Let these creditors, then, resort to the appropriate forum — compel them to come into equity, for the purpose of subjecting the husband’s interest; and then the equity of the wife, from whom this property was derived, can be set up and asserted.
Says an eloquent counsellor, (Mr. Balch,) in the case of Morgan vs. Elam, 4 Yerger R. 409, “ The argument that these settlements are likely to produce perpetual feuds and contentions, seems to be more specious than solid. In njost cases, the seeds of that rebellious spirit which the wife, having a separate property, may manifest towards her husband, are sown long before the'period of marriage. This spirit may be traced back, in most instances, to a defective early training, to the indulgence of bad-propensities in infancy and youth, not to the simple and single fact, that the feme covert has an income for herself and children, independent of the effects and fortune of her husband. In' the faithful discharge of the duties of that mysterious connexion called marriage, the weaker sex may proudly challenge competition with the stronger. All experience teaches us, that in devotion to the [370]*370interests of their husbands and their children, in tenderness, patience under calamity, in disinterestedness, they are wholly without rivals in the opposite sex.
“ In this country, where the laws of primogeniture and entails have been abolished, where even executory devises are looked upon with jealousy, these marriage settlements must be sustained upon the principle, that they are in many cases demanded by justice, humanity and prudence.
“ This is an age of entei-prise, of bold, reckless speculation, of refinement and increasing luxury. There are cases of frequent occurrence, in which it is the duty of an affectionate parent to place at least a portion of his means beyond the control of his daughter’s husband, and jeven the daughter herself, to save her from the improvidence, the immorality, even the kind-heartedness of the man to whom she is united; for it often happens in this country, that men are ruined by their responsibility for others, prompted not by interest, but sheer good feeling.
“ It seems to be a mere fancy to suppose that the affections and feelings of nature in the marriage state, are to be extinguished by the provisions of a marriage settlement, when we have continually such overwhelming proofs of their irresistible power, in the generous devotion of American wives and mothers !”
I have taken the liberty'of making this extract, because there are not wanting those who look with jealousy, and distrust even, in respect to this favourite doctrine of the courts — the wife's equity, believing that it is calculated to make husband and wife aliens to each other.
But not only will the wife’s interests be protected, and the contingent remainders preserved, but by going into equity, the exact interest of the debtor will be ascertained and adjudicated; which will'prevent its being sacrificed.
Mon ought to know what it is they buy, or else, how can they know what to bid % Expose such an interest as this at public outcry, and chance and not judgment would decide its marketable value. The result must prove highly injurious, either to the purchaser or to the debtor ; and no one can doubt upon whom the ruin would fall. This very interest might be worth thousands, and yet, from the very nature of it, and the doubt and uncertainty attending it, it would probably be sold for a mere song. Sold by the sheriff, none but lawyers, and those who are willing and able to pay for their advice, could bid intelligently, and all fair competition would be [371]*371destroyed. Public policy, therefore, unites with other considerations to constrain the creditors of Blake to approach through proper channels in order to be heard. This may be a hard case to them, but the general good ought not to give way to private inconvenience.
It is unnecessary to discuss any other ground in the bill of exceptions. It is ordered and adjudged that the judgment below be reversed.