Caulk v. Fox

Citations

• 13 Fla. 148

Syllabus

<p>1. While, according to the strict rule of the common, law, a freehold estate cannot be created to commencein futuro, and an ante-nuptial settlement by the husband of real property upon the wife, in consideration of marriage, under which a freehold estate is to vest in the wife upon the marriage, cannot operate as a feoffment at common law, yet tlie instrument will operate as a covenant to stand seized to tlie use of tlie person named, and a Court of Equity will secure .tlie wife in tlie enjoyment of suck estate as passes under the deed.</p> <p>2. While equity will construe a marriage settlement differently from its terms, and vary their strict legal signification in many cases in fiivor of the issue, upon the presumed intention of the parlies to provide for the issue, the same rule is not applicable where the contest is between col-laterals, devisees under the will of the husband on the one side, and the wife on the other.</p> <p>S. In such a contest, if the words used in the preamble and premises of the deed operate to pass a fee simple, and the habendum of the deed is inconsistent with the grant in the premises, inconsistent with itself, and uncertain, and such a construction carries out what in the opinion of the court was the real intention of the parties under existing circumstances, the preamble and premises will control, and an estate in fee simple passes.</p>