Hemphill, Ch. J.
There are two questions of importance in this cause, viz :
1st. Whether parol testimony was admissible to affect the import of the deed from James Wood so as to show that the name of John H. Dunham was inserted by mistake, and that the gift, though purporting to be joint to John H. Dunham and his wife, was intended for the separate benefit of the' wife Rotilda, who was the daughter of the donor, James Wood, and
2nd. Whether admitting the separate right of the wife Rotilda, she is not estopped by her acts from the assertion of that right.
The import of deeds of purchase to either husband or wife is from necessity affected often by. parol evidence. The presumption in favor of the community from such deeds may be rebutted by proof that the purchase was from the separate funds of either partner, and, when made in the name of the wife, it may be shown to be for her benefit, not only from the advance by her of the purchase money, but if the funds be advanced from the individual means of the husband the presumption of gift arises, and, if from the community funds, it may be proven that the husband intended a gift, and declaring [245]*245such intention ordered the deed in her name. (Higgins v. Johnson, 20 Tex. R. 389.)
This constant practice of resorting to parol evidence to establish the right of ownership in marital property acquired by purchase is an argument for relaxing the strictness of the rule' in relation to such property acquired by donation, and especially where the instrument being joint to husband and wife purports to give the property to the community. As a general rule of law, parol evidence is admitted in equity to vary and reform written contracts and instruments upon the ground of accident, mistake or fraud, so as to make them conform to the actual intention of the parties. (1 Story Eq. Sec. 156-167.) It may be and is difficult to reconcile this principle with the rule which, in a Common Law Court, excludes parol evidence to explain or vary written instruments. Under our system and in the Courts of this State both are rules of equal authority ; the rule of exclusion being modified by that of admission in the case and under the circumstances in which, at equity, it has been held to be applicable.
The rule in equity as to the admission of parol evidence so as to make the instrument conform to the intention of the parties is well expressed in Hunt v. Rousmaniere’s adm’r, (1 Peters, 12,) and is to the effect that where an instrument is drawn and executed which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfill or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement.
This rule, so far as it declares that instruments shall be conformed to the intention of the parties, is applicable to the case in hand.
It is shown by the evidence of two witnesses, one of whom [246]*246wrote the instrument, that James Wood, the maker, intended to give the slaves to his daughter Rotilda for her separate use and not jointly to her and her husband; that this intention was expressly stated at the time by Mr. Wood; that the name of the husband, John H. Durham, was inserted in the instrument with the intention that he should control or manage the property as trustee, and to express the confidence of the makers in him as such trustee; that his name was inserted at the suggestion of the witness who acted as scrivener on the occasion; 'that the gift of the slaves was in fact to the daughter, the husband only to have the control. There appears to have been a family meeting at which Mr. Wood, the father, made a partial division of his property to equalize the portions of his children. The witness Durham, who did the writing, having stayed with them for a day or two, and the matters being thoroughly discussed by all the • members of the family, must be presumed to have been well informed of the intention of the donor in making the gift. The rule of law that all property acquired by the wife through gift remains to her separately though under the management of the husband, has been so long established that actual knowledge of its existence may with good reason be presumed, and it is but fair to presume that, in this country where, by law, there is a separation of property between man and wife, a parent would so make a gift to a married daughter as that in conformity with natural feeling and the general law it would vest in her separate right, and this presumption gives additional force to the statement of the witnesses that such in this instance was the fact.
This is not a case in which, on the advice of “ counsel learned in the law,” a party has deliberately selected and designated a certain form of instrument as the best adapted to convey property according to his intention. There is no evidence that Durham the writer was a lawyer. On the contrary, [247]*247his volunteered advice to insert the name of the husband is proof of his ignorance of the law on the subject-matter. There was not such deliberation and advice in the framing of the instrument as would operate as a circumstance to induce the rejection of relief from the legal import and effect of its terms. The object was a gift to the daughter, and this ought not to be defeated by the mistaken suggestion of an ignorant scrivener, that the husband should be joined with the wife, and thus make him a trustee and show confidence in him, and substantially, that such would be the legal effect of the insertion of his name. It must be remembered also that this is not a controversy between the wife and purchasers from the husband without notice, or creditors. The issue is by the heirs of the husband whose claims are little if at all superior to those of the husband himself. The contest is in substance between the original parties to the instrument. The equity of the wife is met by no opposing equities, and, under such circumstances, Courts have less hesitation in holding that instruments should be so construed as to carry into effect the intention of the makers.
The evidence shows that the donor intended the husband to act as trustee. Had the gift been to the husband alone, it might have been shown by parol evidence that the gift was in trust for the use of the wife. It has been held in several cases that the creation of trusts by parol and the proof of them by parol evidence has not been prohibited by the Statutes of this State, and if a trust for the wife, by parol, could be fastened upon a separate gift to the husband, much more naturally and reasonably would it attach to a joint gift to the husband and wife. We conclude that parol evidence was admissible to show that» the gift, though joint to husband and wife on the face of the deed, was intended and should operate only as a gift to the wife, and that the evidence was sufficient to establish that such was the intention of the gift.
The next question, viz : Was the wife estopped by her acts [248]*248from claiming these slaves in her individual right, must be answerd in the negative.
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Hemphill, Ch. J.
There are two questions of importance in this cause, viz :
1st. Whether parol testimony was admissible to affect the import of the deed from James Wood so as to show that the name of John H. Dunham was inserted by mistake, and that the gift, though purporting to be joint to John H. Dunham and his wife, was intended for the separate benefit of the' wife Rotilda, who was the daughter of the donor, James Wood, and
2nd. Whether admitting the separate right of the wife Rotilda, she is not estopped by her acts from the assertion of that right.
The import of deeds of purchase to either husband or wife is from necessity affected often by. parol evidence. The presumption in favor of the community from such deeds may be rebutted by proof that the purchase was from the separate funds of either partner, and, when made in the name of the wife, it may be shown to be for her benefit, not only from the advance by her of the purchase money, but if the funds be advanced from the individual means of the husband the presumption of gift arises, and, if from the community funds, it may be proven that the husband intended a gift, and declaring [245]*245such intention ordered the deed in her name. (Higgins v. Johnson, 20 Tex. R. 389.)
This constant practice of resorting to parol evidence to establish the right of ownership in marital property acquired by purchase is an argument for relaxing the strictness of the rule' in relation to such property acquired by donation, and especially where the instrument being joint to husband and wife purports to give the property to the community. As a general rule of law, parol evidence is admitted in equity to vary and reform written contracts and instruments upon the ground of accident, mistake or fraud, so as to make them conform to the actual intention of the parties. (1 Story Eq. Sec. 156-167.) It may be and is difficult to reconcile this principle with the rule which, in a Common Law Court, excludes parol evidence to explain or vary written instruments. Under our system and in the Courts of this State both are rules of equal authority ; the rule of exclusion being modified by that of admission in the case and under the circumstances in which, at equity, it has been held to be applicable.
The rule in equity as to the admission of parol evidence so as to make the instrument conform to the intention of the parties is well expressed in Hunt v. Rousmaniere’s adm’r, (1 Peters, 12,) and is to the effect that where an instrument is drawn and executed which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfill or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement.
This rule, so far as it declares that instruments shall be conformed to the intention of the parties, is applicable to the case in hand.
It is shown by the evidence of two witnesses, one of whom [246]*246wrote the instrument, that James Wood, the maker, intended to give the slaves to his daughter Rotilda for her separate use and not jointly to her and her husband; that this intention was expressly stated at the time by Mr. Wood; that the name of the husband, John H. Durham, was inserted in the instrument with the intention that he should control or manage the property as trustee, and to express the confidence of the makers in him as such trustee; that his name was inserted at the suggestion of the witness who acted as scrivener on the occasion; 'that the gift of the slaves was in fact to the daughter, the husband only to have the control. There appears to have been a family meeting at which Mr. Wood, the father, made a partial division of his property to equalize the portions of his children. The witness Durham, who did the writing, having stayed with them for a day or two, and the matters being thoroughly discussed by all the • members of the family, must be presumed to have been well informed of the intention of the donor in making the gift. The rule of law that all property acquired by the wife through gift remains to her separately though under the management of the husband, has been so long established that actual knowledge of its existence may with good reason be presumed, and it is but fair to presume that, in this country where, by law, there is a separation of property between man and wife, a parent would so make a gift to a married daughter as that in conformity with natural feeling and the general law it would vest in her separate right, and this presumption gives additional force to the statement of the witnesses that such in this instance was the fact.
This is not a case in which, on the advice of “ counsel learned in the law,” a party has deliberately selected and designated a certain form of instrument as the best adapted to convey property according to his intention. There is no evidence that Durham the writer was a lawyer. On the contrary, [247]*247his volunteered advice to insert the name of the husband is proof of his ignorance of the law on the subject-matter. There was not such deliberation and advice in the framing of the instrument as would operate as a circumstance to induce the rejection of relief from the legal import and effect of its terms. The object was a gift to the daughter, and this ought not to be defeated by the mistaken suggestion of an ignorant scrivener, that the husband should be joined with the wife, and thus make him a trustee and show confidence in him, and substantially, that such would be the legal effect of the insertion of his name. It must be remembered also that this is not a controversy between the wife and purchasers from the husband without notice, or creditors. The issue is by the heirs of the husband whose claims are little if at all superior to those of the husband himself. The contest is in substance between the original parties to the instrument. The equity of the wife is met by no opposing equities, and, under such circumstances, Courts have less hesitation in holding that instruments should be so construed as to carry into effect the intention of the makers.
The evidence shows that the donor intended the husband to act as trustee. Had the gift been to the husband alone, it might have been shown by parol evidence that the gift was in trust for the use of the wife. It has been held in several cases that the creation of trusts by parol and the proof of them by parol evidence has not been prohibited by the Statutes of this State, and if a trust for the wife, by parol, could be fastened upon a separate gift to the husband, much more naturally and reasonably would it attach to a joint gift to the husband and wife. We conclude that parol evidence was admissible to show that» the gift, though joint to husband and wife on the face of the deed, was intended and should operate only as a gift to the wife, and that the evidence was sufficient to establish that such was the intention of the gift.
The next question, viz : Was the wife estopped by her acts [248]*248from claiming these slaves in her individual right, must be answerd in the negative. The fact that the slaves were inserted by the administrator in the inventory as community property is of but slight consequence and should not affect the wife, and although she appears subsequently to have been either ignorant of, or remiss in relation to her rights, yet she seems’to have had some knowledge of them and became dissatisfied, and an order was made by the County Court for the correction of the inventory, which was in fact never executed. But it is said that she did not object to the division, but, on the contrary, expressed her satisfaction and showed her acquiescence by receiving the shares of her minor children as their guardian, and placing in the inventory of her wards property which she is now claiming as her own. If this were all admitted, yet the presumption of law is that women are not well informed of their rights, and the appellee, Rotilda, as appears from the evidence, forms no exception to what may be regarded as a general rule. During marriage, she labored under the ordinary disability of supposed incompetency to contract, and in her widowhood she appears to have relied on the administrator. She does not appear to have had a full knowledge of her rights until the duties and responsibilities of approaching marriage aroused her to a sense of her situation. But the estoppel which is claimed is of that class styled equitable, and this only arises when the contract of the party estopped is fraudulent in its purpose or unjust in its result. (2 Smith’s L. Cases in Dutchess of Kingston’s case.)
There must be some admission or act intended to influence the conduct of another, and actually leading Mm into a line of conduct which must be prejudicial to his interest, unless the party estopped be cut off from the power of retraction. (3 Hill, 219.) Now, is there any fraud in the wife contravening the right of the husband or his heirs in this property, or would there be any injustice in assigning the wife this property, if it was really her own. The conduct of the heirs [249]*249has not been influenced by her acts. They have been led into no line of dealing which must operate to their prejudice unless their mother be estopped from disturbing the property as now arranged.
They have made no sales or contracts with reference to these slaves. There was no equivalent or compensation given the widow at the distribution, and they cannot complain if they be restricted to the property to which they have legal right, and that the widow should reclaim that which was not thjeirs but was always her own.
There is no fraud or injustice in an arrangement by which claimants should have their own property and no more, and there are no circumstances in this case which would make justice to the widow operate a legal injury to the heirs of the husband.
But no change was wrought in the property before the suing out of the certiorari, except that it passed from the administrator into the hands of the distributees. This writ may not operate as a supersedeas, so as to affect any arrangements or sales of property by a distributee prior to the writ. But there had been no substantial change. The property remained as originally divided ; and the certiorari related back to the partition, and no matter what she said, or how much satisfaction she may have expressed at the distribution; yet if she brings her writ in time her mere acquiescence previously goes for nothing.
The proceedings are to be revised and corrected. They are not final, in an appellate sense, until after the lapse of two years.
The judgment may be reversed or reformed as the law may require, and the property redistributed according to the very right of the parties in the cause. Any rights which may have grown up under the judgment of the County Court, prior to the supersedeas, cannot be disturbed, as for instance rights claimed through public sale under the judgment, &c. ■
[250]*250The other questions in this cause require no special consideration.
We are of opinion that the judgment of the District Court should be affirmed, except in so far as it adjudges all the costs against the defendants. The administrator was not a necessary, scarcely a proper party to this suit. The allegations of undue influence exercised by him, appear to be but slightly supported by the evidence. In making the inventory, he properly regarded the face and legal import of the deed as his guide. Had the slaves been inventoried and distributed to the wife as her separate property, the partition might have been disturbed years afterwards by the minors ; and if in the meantime the witnesses to the trust in the deed had died, the division would have been set aside; and the charges now brought against the administrator by the widow would then have been urged against both the widow and the administrator. The costs should come out of the property in controversy. We are of opinion that the costs in both the District and in this Court should be equally divided between the plaintiffs in the suit below and the minors, by their guardian ad litem, who are defendants; that the judgment of the District Court be reformed, so far as it adjudges costs against all of the defendants; and that in all other respects the judgment be affirmed.
Judgment affirmed.