Articles made in contemplation of marriage, whereby the intended husband "sells and assigns" to a trustee all the right in slaves belonging to the intended wife, "which he by operation of law may thereafter have," do not pass a title in the slaves to the trustee, but are merely executory, and binding the husband after marriage, to make the necessary assurances to carry them into effect.
The marriage took place, and the slaves went into the possession of the husband, Abner Branson, and continued in his possession until his death, which took place within a few weeks thereafter; when they went into the possession of the plaintiff, the trustee; where they continued until the second marriage of his cestui que trust, Susan, with one Isaac W. Grice; when they passed into his (Grice's) possession, until his death, which also took place in a few weeks after the marriage. The defendant administered upon the estate of Isaac W. Grice, the second husband, and under the letters to him, claimed to retain the possession of his intestate.
His Honor, the presiding judge, gave judgment pro forma for the defendant; and the plaintiff appealed.
GASTON, Judge.
— The decision of this case depends entirely on the question, whether the instrument executed by Abner Branson and Susan B. Cox, immediately before their marriage, transferred the property in the slaves therein mentioned, to the plaintiff, the trustee. The Court is of opinion, that in law, the instrument could not have this operation. The parties thereto must be intended, indeed, to have deliberately assented to all therein declared; but the question presents itself, what is thereby declared? Abner Branson does not profess to sell or transfer the slaves to the trustee, but only to sell and assign the right, which by operation of law he may thereafter acquire in them. This was not the subject of sale or assignment. The instrument can be construed as executory only, and binding Branson, after marriage, to make the assurance or assurances necessary to carry his covenant into effect.
PER CURIAM. Judgment affirmed.