41 N.C. 293 | N.C. | 1849
Henry W. Stevens was entitled to real and personal estates, and died intestate on 14 February, 1847, leaving no issue, but several heirs at law and next of kin, of whom a sister, Amanda, then the wife of John B. Allen, was one. On 22d of the same month the husband, for the nominal consideration of $1, conveyed and assigned to Jacob A. Stevens all his estate and interest in the land descended to his wife from her deceased brother, and also the distributive share of the personal estate of the intestate to which his wife and he in her right were entitled, upon trust to hold the same to the sole and separate use of the wife during her life, and at her death to convey the same to such persons and for such purposes as she might by will appoint. John B. Allen had no other visible property, but was insolvent at the time, and the plaintiff was his creditor by a judgment rendered in 1846, on which an execution was returned nulla bona. The bill was filed in March, 1847, against John B. Allen and his wife, the trustee and the administrator of the intestate, and charges that the deed was executed voluntarily and for the purpose of securing those interests to the wife in fraud of the plaintiff and other creditors of that husband; and it prays that it may be so declared, and that satisfaction of the plaintiff's judgment out of the distributive share may be decreed. The administrator submits to account for the estate as soon as it can be got in, and to pay the distributive share in question as he may be directed by the court. The other defendants did not answer, and the bill was taken proconfesso as to them.
The particular point which arises here has not (295) been presented to the court before. But upon the principle ofBryan v. Bryan,
Then, as a wife has in this State no right to a provision out of the personalty more than the realty, the whole conveyance here was voluntary; and it must be declared that the plaintiff, who was a creditor at the time of the assignment, is entitled to satisfaction of his debt and costs at law and in this Court out of the personal fund in the hands of the administrator or trustee — the bill not praying any relief in respect of the land.
PER CURIAM. Decreed accordingly. *219
Cited: Barnes v. Pearson, post, 483; Moye v. May,
(303)