5 Munf. 42 | Va. | 1816
Wednesday, February 14th, 1816, the Judges pronounced their opinions.
William Lighifoot of Charles City, m the year 1807, intermarried with the female appellee, by whom he had two children.
Having taken up, very unjustly it would seem, an unfavourable opinion of his wife, and she having also displeased him by a refusal to relinquish her dow'er right in some lands, conveyed to one of his sons by a former marriage, he took advice how he might dispose of the greater part of his personal estate in favour of his other children by that marriage, so as to exclude his then wife and the children by her. At the time this design was conceived and carried into effect, so far as hereafter stated, he was in very bad health, in which situation he continued to languish for about two or three months, when he died.
The plan selected for this purpose was to execute a deed of trust, which was accordingly done, to his friend and relation.
1st. To suffer the said Lightfoot to hold and enjoy the said slaves and other personal estate, or such part thereof as he may choose, during his natural life, and if he shall think proper to part with any of said stock, he shall be at liberty to do so, and shall account with said Allen for any money arising from the sale thereof:
2d. To reserve out of the personal estate, so conveyed, so much as shall be necessary for the discharge and satisfaction of all his said Lightfoofs just debts :
3d. To reserve, also, out of said personal estate, so much as shall be sufficient to raise the sum of six thousand pounds; three thousand whereof are to be forthwith considered as vested in and belonging to said Mary E. B. Blakey, and the remaining three thousand are forthwith to be considered as vesled in and belonging to said Anne C Lightfoot: but it shall not be the duty of the said William Allen to pay the same to the said Mary E. Blakey, her husband or the said Anne C. Lightfoot, during the life of said William Lightfoot, until, in his full, free, and uncontrollable discretion, he shall think proper so to do: and if the said Anne C. Lightfoot shall depart this life before marriage, then the said three thousand pomids shall be divided equally among the surviving children of said Lightfoot by his first wife:
4th. To select the seventy-five slaves, reserved as aforesaid, in such manner as said William Lightfoot may prefer, and, if be makes no such preference, in such manner as said Allen shall
5th- To transfer and assign, and in the fullest manner convey, to said FJilliam H. Lightfoot, whensoever, according to the true intent and meaning of these presents, he may lawfully demand the same, a full moiety of said slaves, and other personal estate, as may belong to him, after the deductions, reservations and conditions aforesaid, and upon an equal division of the remaining parts between the said William H. Lightfoot and Philip J. Lightfoot.
6th, In like manner to transfer, &c. to Philip J. Lightfoot, whensoever he shall he capable in law if receiving the same, or to his guardian, whensoever, according to the true intent and meaning of these presents, he may lawfully demand the same, a full moiety of said slaves, &c.: but if the said Philip shall die before the age of twenty-one, without leaving, at his death, any child or children lawfully begotten, then his moiety, upon the division aforesaid, shall be equally divided among the surviving children by the first marriage.
7th. The grantor excepts out of the operation of said deed such property, as he had heretofore given to his children, and then concludes, that said Wm. Allen shall not he liable, hi any manner, to any loss, damage, or txpsn.ee in the execution of the trust, and that his accounts, divisions, selections of slaves, reservations, and actings shall stand Jinn and valid, without any CHARGE OF NEGLECT, &C.
This deed bears dale on the 21st of April, 1809. There are the names of three subscribing witnesses to it; it was recorded, however, in Charles’ city court on the 19th of May, 1809, on the proof of only two witnesses, John Willison and James Stuart, who stand first in the order of signing. ¡Stuart, in his deposition, says it was executed and attested by him on the 17th of May, 1809 ; at which time said Lightfoot was very unwell; and that 140 of his slaves were.brought to his bouse, valued by Wm. Allen, and divided between the two sons mentioned in said deed, but, not removed.
A few days after the date of this deed, to wit, on the 27th of April, 1809, the same Wm. Lightfoot made his will, wherein he says, “ having executed a deed for the greater part of my i! slavey and other personal estate to Wm. Allen, in trust, with
On the 18th of May, he makes a deed to his son William, for the consideration of natural affection, and a small annual hire, for a number of slaves, part of the seventy-five reserved as above; and, also, about the same time, makes deeds to his son in law Blakey and his daughter Anne, for two negro girls each, which he says he had given them by his will. On the 8th of June, he makes a codicil to his will, giving to his son Philip seventeen slaves, by name, tobe of equal value to those given to William by deed, being part of the seventy-five reserved.
It appears that the personal estate of said Lightfoot exclusive of the 140 and 75 slaves ahove, was considerable, iu household furniture, horses, stock of all kinds, &c.; of which, it seems, Allen has sold, by consent, since this suit, to the amount of $11,385,00 — that said Allen has received into his possession the iron, chest and trunks of said Lightfoot, since his death containing his books of account, bonds and other evidences of credits, including loan office certificates, bank notes and cash, to the amount of upwards of 15,0001.: — in addition to which, there appears a credit of about 1250Í., on account Of tobacco sold by Lightfoot, after the deed of trust, to
The female plaintiff brought her bill in equity against the executors, trustee, &c. for her distributive share of the slaves and other personal estate, and to have the deed of trust, and other deeds aforesaid, set aside and made void as to her, as fraudulent and illegal, and to have her dower in the land3 assigned her, &c.
in her amended bill, there is a vague allegation of a marriage promise, but, not considering it either sufficiently charged in the bill, or properly proved, I put it out of the case.
The important inquiry arises out of the deed of trust above mentioned; — how far it is to operate to bar her of her distributive share of the slaves and personal estate comprehended in it; and perhaps the same inquiry ought to be extended to the subsequent deeds of gift to the children of portions of the 75 slaves; — at least so far as those gifts were not consummated by delivery. I will, however, for the present, confine myself to the deed of trust.
In support of this claim, on the part of the appellees, it is alleged that the widow’s rights, under the laws of this state, are similar to those of a widow in England, under the custom of London; and that, therefore, the decisions of the British courts in cases arising under the custom, are entitled to as much respect and consideration as they usually receive here, when pronounced on cases arising under similar statutes with our own. We are referred to Black stone's Commentaries, and various other books as to the nature of the widow’s and orphan’s rights under the custom, and to numerous decisions of the Courts of Equity, in England, setting aside deeds of this kind as fraudulent. And I believe it will not be denied that, if the cases are parallel, and those decisions entitled to weight here, this case is stronger in favour of the appellees than many in which deeds there have been set aside.
Judge Blackstone, in the 2d voL of his Commentaries, pages 491 — 2 and 3, says, in substance, that the power of bequeath
Agreeable to this ancient method, whether we consider it as being originally the common law, or merely the custom of particular places, the interest of the wife in the estate of tire husband, so far as it results from the aforesaid incapacity to bequeath the whole from her, was of the same nature as it always has been, and now is, under the laws of this stats : — indeed, at present, the extent of that interest in this respect is also the same, as will be seen by an inspection of our old and late statutes on the subject. I say, this I believe has always been the law here; for, although, about the 2áth of Charles II., when our first statute on the subject was made, doubts existed as to the widow’s rights, (probably owing to that change which Judge Blackstone says had taken place in En aland about that time, and perhaps for the want of a statute of distributions similar to that which a few years before had passed there,) yet the
It recites that, “ whereas many doubts have arisen eoncern44 ing the estates of persons intestate, and of what parte thereof 44 ought to appertaine to the widdow, for the clearing whereof,” it is enacted, “ that where persons dye intestate, the wid- “ dow shall be endowed with the third part of the reall estate “ during life, and the third part of the persona.il estate, if there “ be but one or two children, but if there be any number of “ children more, in that case the personal! estate to be devided “ amongst the widdow and all the children share and share “ alike ; and, in case the husband make a will, that he hath it “ in his power to devise more to his wife than what is above de~ “ termined, but not lesse.”
Again, in our stat. of 4. Ann. ch. 23. (3d Hen. Stat. at large, 373,) which is nearly a transcript of the British statute of distributions of 22d and 23d Chas. II. ch. 10. instead of the clause in that statute which provides that nothing herein shall extend to or prejudice the custom of London and York, there is the following clause, “ provided, also, that, when any per- “ son dies testate, if he leaves one or two children, and no “ more, he shall not have power to dispose of more than two “ third parts of his estate, by will, to any other person or persons “ than his wife, and one third part thereof, at least, shall be given “ to her; and if such person shall leave more than two “ children, he. shall not leave his wife less than a child’s part, 44 according to the number of children : — but if such person “ leaves no child, then the wife shall have at least one equal “ moiety of his estate — it then provides, that any will, wherein a less part is left to the wife, shall upon her petition to the court where the same is recorded, be declared nail and void as to her, &c.
By the 1st of Geo. II. ch. 2. sect. 4. (Virg. laws, ed.of 1733, p. 407.) it is enacted, that, where a widow is not satisfied by the provision made for her in the will, she may renounce the same, either before the court, or by deed executed in presence of two witnesses, and may then demand and recover her dower in the slaves, and such share of the personal estate as by the above act is directed.
Here we find the same incapacity imposed on the husband, to bequeath all his personal estate from his wife, which existed in London under the custom ; and whether that was originally the common law, or whether it has always been the law of this state, seems to me not material to inquire into : — suffice it to say that similar incapacities and consequent rights existed under the custom that exist under our law, and we are called upon to weigh and determine the relevancy of decisions, in the British courts, in cases arising under the custom, to the one which has arisen here under our statute.
The case of Turner v. Jennings
In Smith v. Fellows,
In 1742 this decree is confirmed by the Lord Chancellor,
In Thompkins v. Ladbrock,
The father was indisposed at the time he made this gift, and died shortly after. The husband, in the life time of his wife, brought a bill to set aside this assignment. The first question which arose was, whether the husband, for his own benefit, had a right to call in question an act done by the father to defeat the custom, or whether that is confined to the child. ?
The second was whether this act was in fraud of the custom.
The Lord Chancellor decided both these points in the affirmative. To establish the first position, he speaks of the orphanage rights of the child, in the life time of the father, as inchoate rights to which her husband became entitled. That his rights were consequential, arising from the custom, contingent at first, but vested in him, in right of his wife, after the father’s death. Again, he says, “ The very custom supposes that this inchoate right (if I may so call it) of the child of a freeman, is a groundi of advancement of marriage, &c.”
But it is said the wife is not a creditor, and has no rights against which a fraud can be committed. Might not the same, with equal propriety, be said of a husband before marriage ? His right to his intended wife’s property is only contingent and inchoate, depending on the subsequent marriage, w’hich may never take place; yet a fraud it is said may be committed against that right.
I do not think it material whether what is now called the custom was originally the common law, or not. It was a law of a considerable portion of the kingdom, and the reasons which induced a particular course of decision under it would have applied with the same force had it been and remained the general law. But take it as merely the law of part of the kingdom, and that, almost at the dawn of our existence, it was borrowed therefrom, by our legislature, as far as it respected the wife, and adopted as the general law of thi3 state, the rules and principles of decision, under the custom, if sound and correct equity, ought to be the same under our law; unless I am incorrect as to the parity of the cases, or unless that which is equity, under the same circumstances, at one place, is not so at another. It may be said though, that this course of decision forms a part of the custom, and that our law has not adopted every part of the custom, much less these decisions. I do not think it material to investigate the details of the custom, and to compare them with our law, as it is enough for me that the decisions above referred to are not certificates of recorders, but the application, by learned judges, of principles of equity to the rights of parties arising under a law, which, though not general, is obligatory where it is the law; and which course of decision, it appears to me, as it did to them, was necessary to prevent that law becoming a dead letter. The recorder, if necessary, certifies the law from which the right springs, as, in this case, the incapacity of the freeman, according to the custom, to bequeath the whole of his personal property from his wife, as is also declared by our law ; from which leading and primary feature in the custom, and positive provision in our law, the rights of the wife in both cases arise ; and to prevent the evasion of which law, and the prostration of which rights, the courts interfere : — and, although the custom may, in some of its minute details, differ from our statute, I consider that circumstance cannot impair the applicability of those decisions to cases arising under our law, unless it appears that those decisions are
But suppose, since the abolition of the custom of London, by the statute of II. Geo. 2. cli. 18., a freeman, as he is authorized to do by that statute, by marriage articles agrees with his wife, that, if he dies first, she should take that share of his estate to which she would be entitled according to the ancient custom of London; what other rights would she have,, under this agreement, than a wife formerly had under the custom ? none as I apprehend ; it being merely, provided by the legislature that those who wish still to be governed by this custom may by contract retain it, as the law of their case,
It is argued, however, that to apply the decisions under the custom to our Jaw would render wives independent, and encourage rehellion, desertion, &c. — on this very ground I should regret an alteration in the law, so as to give a complete testamentary power, as in England. A resort- to marriage settle-
The donor, in this case, although he professes in his deed to make an advancement to his children in his life time, in reality intended no such thing : some of them were minors, and incapable of taking care of such property, and he retains to himself the fastest hold of every thing during his life. — None of the trusts were to take effect, in possession, until after his death. He retained a right to sell a large stock, to raise money from any of the property to pay his daughters portions, as also all his debts, as well those then contracted, I presume, as any he might thereafter contract. Who was to prevent his buying lands, or other property, and paying the debts, thus contracted, out of this fund ? Nay, what was to prevent a sale of every thing ? The deed is voluntary; is a deed of trust, and
As to the stock though, he is to account for sales; — but when ? He has the whole during life ; and out of what funds is it to be paid, if the whole, together with the property retained, was squandered, given away, or vested in lands for his children unprovided for ? The whole of his extensive credits, public stock, &c. with the deeds and evidences of them, not only remained in his possession during his life; but, I apprehend, the legal right to assign or recover them, and grant acquittances also remained in him, and that payments to him, or transfers and assignments of them by him, would have been good. Had they been also collected and squandered, or laid out in lands, as above, would a court of equity have decreed the latter to the present cestui que trust ?
With respect to the two minors, the deed limits over the money to be raised and the proceeds of these credits, &c.„ as though he had been making a will: — payment of debts, &c. are provided for as in a will; in fine, he being in very low health, if a will could have effected what was intended by this deed, no doubt can remain but that course would have been resorted to; and I therefore think this deed, under all the circumstances, has been well termed a mill in disguise.
His opinion that he had, in fact, the power to make it so, and to prevent any interference with his conduct, ay to this property, in case of recovering his health, by means of the vast real property which was not settled with the slaves to work it, as it would have been had a real advancement been intended, but which he retains the power to deprive bin sons of, in case of improper interference, is manifest from his declarations to this effect to his friend and confidant the defendant Tyler aa proved by the witness Bullock. He says, in substance, that, being in company with governor Tyler, be said that he had written the will of Lightfooi, at his request; that, previous to that, Light-foot had inquired of him whether lie could not dispose of his
Nay, had the whole or the greater part of this large personal estate been bequeathed to his wife, and his children unprovided for, and the land devised to the sons, on condition that this bequest should not be disturbed under the deed, or if it was, that the legatees should then have the land, I believe such bequest would not have been disturbed. And as a practical example of what he himself, and even the defendants, thought of the business, during the very short time he did live, I will instance the gift of his wife’s jewels to his daughter, the power to do which is insisted on in the answer ; and the sale of tobacco, to a large amount, to a Mr. Conway Whittle, soon after the date of the deed. In fact he had it in his power to dispose of this property as he pleased, and to make it the interest of the cestui que trusts to submit.
If I am wrong though, in this main question, there is nevertheless one portion of the property comprised in this deed, to wit, the credits, public stock, &c. which perhaps ought to be considered with reference to another principle. As this point, however, was not noticed in the argument, I advance to it with considerable diffidence : but if the legal title in these subjects remained in Lightfoot; it he alone could have sued to recover the debts, and had a right to collect and grant acquittances therefor, and to transfer the stock; and if this right and title devolves on his executors, then the trustee and cestui que trusts must claim through them in consequence of an alleged equitable right arising under the deed of trust. So far as this deed vests the legal estate in the trustee, the appellees cannot be said to claim through the executors, who would not take that fund even for payment of debts; but (hey claim to set aside that deed, merely as to them, in the same manner as a creditor would claim to set it aside, as being a fraud on the rights of the
The distribution, according to law, of a large portion of these assets, however, is controverted by the trustee and cestui que trusts, on the ground of an equitable claim thereto under this defective conveyance; and the question is, whether a court of equity will help such conveyance in favour of mere volunteers otherwise amply provided for, to the prejudice of the legal rights of the widow, who, by this deed, if I ain wrong in the preceding opinion, has been deprived of her reasonable share in the other personal estate, and left with two young children to support and educate, who are entirely dependent on her,
I am not at present satisfied that the appellants stand on higher ground, as to this matter, than they would have stood as plaintiff’s in the cause ; on the contrary I incline to think that the executors must be considered as stake holders, as to this subject, and the other party to interpleaders, or as the wife and distributees would have stood had not this deed been interposed; and that, as in cases of suit for partition, in which all parties are considered as plaintiff’s, each would be preferred or postponed according to the merits of his claim, without considering whether he was plaintiff or defendant in the suit, and, at most, only permitting the law to prevail, when the scales were perfectly equal as to the equity. Neither I apprehend are to be considered in possession ; for, though the trustee is also executor, he never qualified, and there are other executors who did qualify ; nor do I perceive any evidence of a transfer of this subject to him as trustee. In fact the credits may not yet be collected. Considering this fund then in the hands of the executor as such, and considering also that, as to the appellees, the will has no operation, the law of distributions must then prevail in their favour, unless there
But to test this more fully by general and well established principles of equity; let us suppose that Lightfoot himself was in being, that he was reconciled to his wife and satisfied of the injustice he had attempted, towards her and his children by her, in this deed; and, to repair it as far as possible, was about to collect these credits with a view to make some provision for her and them ; would a court of equity, in a suit brought by the trustee to prevent this, interpose to help this voluntary conveyance ?
The general doctrine, as I at present understand it, is this, that where a deed is not sufficient in truth to pass the estate out of the hands of the conveyor, but the party must come into equity, the court has never yet executed a voluntary agreement. — To do so would be to make him who does not sufficiently convey, and his executors after his death, trustees for the person to whom he has so defectively conveyed : and there is no case where a court of equity has ever done that: whenever you come into equity to raise an interest by way of
It is true that this is a provision for children, which generally is esteemed a consideration sufficiently meritorious; but then this may be done away, if there is something equally meritorious on the other side, as when the heir is not provided for, &c.- — But, in this case, suppose there was no will; and that, this fund being in the hands of the executors, it was a question with the court, whether the defect in the conveyance should be supplied, in favour of the children by the first marriage, having a large provision made for them in so far as the legal estate vested in the trustee, to the total exclusion of those by the second; would the court not find sufficient reasons for withholding their aid ? No particular child here is heir at law, but all succeed equally; and so, according to our jurisprudence, Ihe father is as much bound to provide for one as another. He attempts though, to give all to one, or a few, but fails to make a legal conveyance, and the party claiming under the deed cannot succeed without the aid of a court of equity ; — according to the principles above, that aid, I apprehend, will not be given.
If, though, there had been no will, and the unprovided for children had been before the court, and their equity had prevailed over the claimants under the deed, would not the wife also have prevailed and taken her share ? But if she and the children, unprovided for, would together have greater equity, in case the will had not barred their pretensions, how is her claim lessened, when the will is,of no avail as to her ? — The children unprovided are repelled, not because the deed gives superior or even equal equity to their just claim, but because they are cut out by the will; and the widow is to bo defeated, not by the will that is of no avail as to her, but by the deed, which is not sufficient to defeat the legal claim of the children, if the will, as to them, was out of the way '. t!
If it is true that the widow gets valuable dower lands, but without slaves to work them ; but these she gets, not from the justice or bounty of her husband, but because she could not be deprived of them. — Her dower right, though, in the lands,
But if the consideration of the magnitude of the wife’s dower, in the real estate, could so far avail in this case as that the court could decree to her, upon terms that she should make a settlement upon her children unprovided for, even this would measurably effect the justice of the ease.
This subject would have claimed a more full and satisfactory investigation on my part, were it not that, on the great question, as it regards the whole property comprised in this deed, I am, for the reasons above assigned, for affirming, in principle, the decree of the chancellor.
Judge Brooke. The original bill filed in this eause charges that William Lightfoot, the former husband of Anne C„ Colgin, one of the appellees, combining with his children by his first wife, and others, to defraud the said Anne C. Colgin of her dower and due proportion of his personal estate, and to disinherit her children, executed on the 21st of April, 1809, a deed to William Allen for all his porsonal estate, except seventy-five slaves, upon trust, for the benefit of his children by his first
Putting out of the case the pretended marriage contract, which is not supported by any adequate proof, and admitting (what I think seems established by the evidence,) that the deeds were executed with the intention to defeat the claims of the wife to that portion of the estate to which she would have been entitled in the event that her husband had died intestate, or leaving a will which she might renounce ; the inquiry is, whether the wife has such an interest in the personal estate of the husband during the coverture, that a fraud has been committed upon it by the operation of the deeds in question. In making this inquiry, I shall endeavour to place the subject in the two distinct views that were taken of it by the counsel for the appellees. The first position is, that the deeds are fraudulent because they defeat the rights of the wife under our statute; the second, because the deed of trust to Allen is not absolute and unconditional but testamentary in its operation.
The correctness of the first position must depend on a sound construction of the statute of 1785, in connexion with the preceding acts of 1727,1705, and 1672, by which the interest of the wife in the personal estate of the husband is recognized and ascertained. The act of 1785, (which was re-enacted in 1792,) 25th section, declares that, when a widow shall not be satisfied with the provision made for her by her husband’s will, she snay, within one year from the time oí his death, in the manner. therein prescribed, renounce all benefit which she might claim by the same will; and thereupon such widow shall be entitled to one third part of the slaves whereof her husband died possessed, which she shall hold during her life, and moreover be entitled to such share of his personal estate as if he had died intestate. In considering that act, I have bees unable to dis
That position is, that the deed of trust sought to be set aside, is not absolute, hut a mere testamentary act revocable by the grantor. — I shall leave out of the examination of this point the suggestion that it was to have been re-delivered to the grantor in the event of his recovery from the sickness, with which he was then afflicted; — because that fact is not sufficiently proved, and, if it was, 1 am not satisfied that it would affect the CtlSC.
The deed is said to be only testamentary, because (as the phrase is in one of the eases upon the custom,) the grantor did not dismiss himself of the property: — but I think the answer is that ho did dismiss himself of his whole interest in the re-per.dmi, which was all that was intended to pass by the deed: - — it was not intended to affect his life interest in the property.— The essential character of a testament is that it is at all times revocable ; hut it will not be said that the deed in question could have been revoked by the grantor; or that the interest conveyed to the trustee would have passed by his will; or, putting the claims of the wife out of question, that it would have devolved on an administrator. — The principle, which admits that the grantor might have disposed of his whole interest in the property for the purpose of providing for his family, cannot be made to deny him the right to dispose of a part of it for the same object. — The objection that, by reserving the life estate, he had the full enjoyment of the property, and In that sense did not dismiss himself of it, is (bunded on the supposition that the property must be enjoyed to the full extent of the interest of the owner in it, or it would not be beneficial.— The answer to that is, that to retain the reversionary interest in property is not always the best way to enjoy it: — to deprive (he husband of the power in his life time of disposing of
With respect to the public stock, and other credits, included in the deed of trust to Allen, if the children by the last marriage were complainants in this case, the question which might arise in relation to their rights thereto, would merit examination, and would be susceptible of views not now taken.
I concur therefore in the decree, which is to be entered as the decree of the court.
Judge Roane.' In deciding the question relative to the validity of the deed, I will admit the most for the appellees ; and that is, that it was more the intention of the grantor, in executing it, to impair the interests his wife would have been otherwise entitled to in his estate, than to provide for his children. ' It is manifest, from the testimony, that this was a determination long previously formed, and never abandoned. This intention is, also, clearly betrayed by the unusual and over cautious expressions contained in the deed itself. As to these, the maxim, “ clausula inconsueta semper inducant suspicionem,’3 forcibly applies. I have no hesitation in admitting that, as to creditors and purchasers, the deed would be considered fraudulent. It is not to be forgotten, however, that the grantees in it are the children of the grantor ; an obligation on the father to provide for whom, is said by this court in the case of Ward v. Webber, 1 Wash. 274., to be a good consideration both in law and equity. The contest, then, is between children, who are more than volunteers, especially as they are not shewn to have been otherwise provided for, and the wife ; who maugre this effort of the husband, had an ample provision of which he could not deprive her. There is no strong preponderance of claim in point of equity, therefore, on the side of the wife, when contrasted with the claim of the children. In the case of Taylor v. Jones, 2 Atk. 603, which was a contest between the wife and children on one part, and the creditors on the other, it was said by the master of the rolls, that, although he had great compassion for the wife and children, yet, if the creditors should not
Admitting this deed to he clearly fraudulent, does it not cease to be so, quoad, the appellees, if they have no interest to entitle them to impeach it ? Must there not be two parties, before a deed can be considered and set aside as fraudulent, the party defrauding, and the one defrauded ? — and can the last exist unless he has a vested interest ? It is held that, by the common law, a person having a debt due him, or a right or title to a tiling, might avoid any fraudulent conveyance made to deceive or defraud him of that right or debt :
As to the claim of the wife to a provision from her husband’s estate after his death; — while it is founded injustice and equity, it does not extend to the whole thereof. It is to be limited by the positive provisions of the law. This was decided in the aforesaid case of Claiborne v. Henderson. There is no hardship in this; for she knew the extent of her rights, and of the husband’s power over his property, when she married him. There is the less hardship in allowing the husband unlimited power of disposition over his personal property in his life time, as she gains an indefeasible interest in bis real. She is therefore bound by the positive provisions of the statutes. The act which immediately relates to this subject, declares that,
If, then, the wife, as to the persona! estate of her husband, is not to be considered as a creditor ; if she has no vested interest therein; if there be no decisions to this effect, either in this country, or iu England, except upon the construction of the custom of London, is it fair to apply the decisions under that custom, in which she is sometimes held to be a creditor, and at others to have a vested interest, to the case before us ? If, under that custom, she has a ground to stand on to impeach the conveyance, can she do it here where no such interest exists ? I do not profess to understand that custom, nor the decisions under it; but this I understand, that, by the principles ;of the common law, no person can complain of a fraud who has not an interest in the subject in question ; and that a wife has no legal interest in her husband’s goods, during his life time, that can prevent his aliening or giving the same away. I also understand that the wife under that custom, is considered as having an interest therein. I shall not stop to inquire on what grounds (not applying in this country) this has been so decided in England ; but I will refer to a few of the cases in which the interest of the wife and of the children under the custom, is placed upon a footing, and has a dignity, never ascribed to the claim of the wife in this country.
In the case of Tomkyns v. Ladbroke, 2 Vesey, sen’r. 591., it was held that the interest of a child under the custom, was an inchoate right, and a ground of advancement in marriage ; andthat, although such child cannot, strictly speaking, be said to be a creditor, yet, that that is an analogous expression,
These ideas are quite new in this country, as applied to the rights of the wife. She is not considered as a creditor, nor can her interest prevail against creditors of even the lowest degree. Losses, such as those just mentioned, are tobe borne by the whole estate ; all of which is a legatory part quoad that purpose ; and she can only come in for a part of the surplus after creditors of every class are satisfied. This is admitted even by Judge Tucker, in the passage before mentioned, as the established law, although, as to negroes, it seems to be his individual opinion that, under the word “ possessed,” she would be entitled to her third in preference to creditors. In the same passage this writer has laboured to put the wife upon the footing of a creditor ; but he admits, at the same time, that hia construction in this particular has not prevailed,
But this is not all; most of the English cases on the custom only set aside such conveyances as are considered in the light of a donatio causa mortis, as quasi a will, and not such as are considered perfect grants. This is conceded by the appellee’s counsel, who have contended that the conveyance before us is in fact a will in disguise. I have been able to find only one or two decisions of a different character, and they have been, perhaps, attended by circumstances not existing in this case. The case of Cowper v. Brown, supposed by one of the judges to be a stronger case than this, in addition to its being a solitary case, by an inferior court also, probably went off on the idea of being a donatio causa mortis ; for the deed and will are stated to have been made on the same day, and therefore as forming, as it were, one transaction. But, in the case before us, the conveyance in question has no ingredient of a testamentary act, or of a donatio causa mortis, when one, moved by the present peril of death, gives and delivers something to another, to be his in case the giver die, or, if he live, to have it again. This gift is compared to a legacy, and it becomes not his presently, but in case the giver die.
These criteria entirely exclude the conveyance now in question. \ By it the property was absolutely given by an instrument which is not, revocable. The right of the donees is
Considered as a grant, it is of no importance that a remainder only is granted, while the life interest is retained. That remainder is a vested interest, is a real advancement, and may be alienated. In the case of a father having but one negro, he can only provide for his child, in this way, without depriving himself of the present use of that negro altogether, and reducing himself to want. This decides the principle of the case. Again, it is said that the donor did not part with the possession of the property. Two answers occur to this objection : 1st, That the possession of the donor is consistent with the deed of settlement which is recorded ; and 2d, That this possession cannot be objected on the part of the wife. 1st, Because she cannot be supposed to be ignorant of this open and notorious transaction done by her husband ; and 2dly, because she is not a creditor, and could not therefore be defrauded or deceived by a delusive possession. It is held in Ryal v. Rolle, 1 Atk. 197, that possession of goods is no otherwise a badge of fraud than as it is calculated to deceive creditors ; for, as to goods (adds the chancellor,) ! have no way of coming to the knowledge of the owner, but by seeing who is in possession of them. In the case before us, that knowledge was afforded by a recurrence to the records. The separation of the possession from the right, therefore, cannot be objected by any, and much less by the wife, who is no creditor, and must also be supposed conusant of all the transactions of her husband. With respect to what is said by one of the judges, of placing the children under terms in consequence of the legal title of some of the property being in the executors, and not in the trustees; the answer is, that these children are not plaintiffs, and ask nothing from the court,
This view of the subject determines my opinion in the present case. Owing to the particular circumstances involved in it, I may regret the judgment I am obliged to give. I had even strong feelings, on the argument, in favour of the appellees, which had almost overpowered the best convictions of my understanding. I rejoice, however, that I am liberated from my first prejudices, and that 1 shall not now» give a decision, which would afford a precedent in other cases, exalting the claim of the wife beyond its proper level, and abridging the heretofore admitted right of the husband over his personal property. I shall not, even in this strong case, lay the foundation of a superstructure, the consequences of which 1 am unable to foresee or estimate. My opinion is, that the deeds in question be decreed to be valid; and that the decree be reversed so far as it holds the contrary, and the wife be let into all her legal rights, excluding those passed by the deeds in question. I concur in the particulars of the decree to be exhibited by the president.
Judge Fleming. This cause seems to me important, rather from the magnitude of the subject in controversy, than from any difficulty in the principles on which it should be decided ; which, I conceive ought to be by the laws of our own country, without regard to the customs of any foreign country or city whatever, unless they perfectly coincide with the principles, laws, and usages of our own.
Two points only appear to me material to be considered, 1st, whether a marriage agreement, or promise, on the part of Lightfoot, as charged in the bill, or any other, be proved ?— and 2dly, whether, if not, he bad a right to dispose of his personal estate in any manner he thought proper in his own life time.
With respect to the first point, I consider the boastings of Lightfoot, that he was worth ] 80,000l., mentioned in one of the depositions, a mere gasconade, or idle talk, not affecting the present question, and the only evidence of a marriage promise that appears in the record, is the deposition of John H. Boswell, who says that, “ some few weeks before the marriage»
But the deposition of Boswell, so far as it goes to prove the promise of a jointure, is inadmissible evidence, if we pay respect to our statute of frauds and perjuries, which was intended to guard against the very evil and mischief which now appears before the court. And I consider myself as much bound by that statute as by any one in our whole code of laws ; as I can discover nothing in the record to take this case out of the operation of it. But admitting for a moment, that, the promise of a jointure had been legally proved, the appellees must either give up the claim, or rely upon if altogether ; for it is a well settled principle that, by our laws a widow shall not have both jointure and dower ; though, in some cases, she has an election to take which of the two she may think most for her benefit. In regard to the second point, whether Lighlfoot had a right to dispose of his personal estate in any manner he thought proper, during his own life time, I have no doubt; as no marriage agreement or promise has been proved, to give his widow a lien on that part of the estate. — It is admitted that, it appears from the evidence, one motive for his conduct was to deprive his wife (with whom he had for some time lived unhappily,) of dower in a great portion of his personal estate ; but whether or not, his motives for such conduct comported with the strict rules of morality, is not for me to decide; but it is worthy of remark, that his large gifts of personal property after his second marriage stated in the record, were not to defraud creditors but they were to advance h; life his own offspring, by a former venter, three of whom were married and had issue; and for whom he had, previously, made but a slight provision ; and therefore he was naturally and morally bound to provide for them ; the measure of which provision was altogether within his own breast, so furas it respected his personal estate : and should this court interfere with, and control such his undoubted right and privilege, it would, in my apprehension, be makings very injudicious and dangerous
The following was pronounced as the court’s opinion :—
The Court is of opinion that, although, in a controversy between creditors of the grantor William high (foot, in the proceedings mentioned, and the appellants his children claiming the slaves and personal estate novr in controversy by voluntary conveyance from the said William Lighifoot their father, the said conveyances might, under the circumstances disclosed in this case, be held to be fraudulent as to them ; — yet that, in this case, of a controversy between the children of the said William Lightfoot, not shown to be otherwise provided for, and his widow, who is entitled to a large dower in his real estate, besides her share in his personal estate unconveyed by those deeds, the court has no power to set aside the said deeds ; — both because of the meritorious claims of the children, as aforesaid ; because the widow has no claim of interest in the property, conveyed by the deeds aforesaid, which will let her in to impeach the same ; and because there is no principle, authorizing this court to interfere in this case, which would not equallyjustify it in setting aside a deed, as fraudulent, made in favour of children otherwise unprovided for, on the ground of its being voluntary. — The court is farther of opinion that, although the widow of a person dying seized of real or personal estate has a legal, equitable and moral right to a provision from his estate after his death, yet that this claim does not extend to the whole thereof, — must be limited and defined by law as to the extent and quality thereof. — and be in subordination to the claims' of creditors, and others, to whom a preference is given by the positive provisions of the statutes,
The court is farther of opinion that this case cannot be at all influenced by decisions upon the custom of London, (which were so much pressed in the argument 5) — among other reasons, because that custom has given to the claims of the wife and children arising under it a dignity not belonging to that of the wife, claiming independently of the will, in this country ; and because, while the cases on the custom, which were cited, are, on this ground, wholly inapplicable, they are also inapplicable so far as they apply to the deeds annulled and set aside thereby in England ; for those deeds had a resemblance to a testament, or, at least, to the testamentary disposition called a donatio causa mortis, to which the deeds now before ns bear no similitude; the same being neither ambulatory and revocable, made in present peril of death, nor under a confidence that the property would be restored if the donor recovered from a present illness, but being conclusive deeds máde in pursuance of a determination, long previously formed, to grant the property to his children.
The court is farther of opinion that, while the English eases, made upon a different law, are inapplicable as aforesaid, it ought not to be bound by the decisions of any of the subordinate tribunals in this country, (if there be any adverse to the opinion now declared,) because it is the province of this court to correct the errors of those tribunals when committed, and not to follow them because they have taken place -and the most that could be contended for on this point would be, that this court, in a doubtful case, would be governed by a long series of decisions which have grown into a rale of pro
Acting under the influence of these, among other reasons, the court condemns of error, and reverses so much of the decree before us as sets aside, in favour of the female’appellee, the deeds of April 2]st, 1809, and the deeds of May, 1809, in favour of the defendants George Blakey, William H. Idghifoot, and Anne'C. Lightfoot, and as gives to the said appeüee a part of the slaves and other estate thereby conveyed; — and also so much of the said decree as directs an account to be rendered of and concerning the slaves and other estate conveyed by the said deeds, and decrees in favour of the appellees (he payment of the hires or profits thereof. The decree is to be reversed, so far as it conflicts with the opinion and decree now pronounced, vsith costs, and affirmed as to the residue : — and the cause is to be remanded, to be finally proceeded in pursuant to the principles of this decree.
2 Vern, 612.
2 Vern. 277.
2. Atk. 62.
Ibid. 377.
4) 2. Vez. 591.
1 Font. ch. 4. sect. 11.
1 Atk. 63, Metcalfe, &c. v. Metcalfe, &c.
See this statute in 2 Eq. cases abr. 278.
See a case under a contract of this hind, Lucas v. Lucas, 1 Atk. 270.
Fonb. Bk. 1, ch. 4 § 16. n. p.
2 Atk. 160
2 Vern, 202.
а) 2 Vern. 612.
6) 7 Viner.
3 Atk. 676.
2 Vezey, sen. 591.
3 Bac. 307, and 3 Co. Rep. 83. Twine’s case.
Ibid.
3 Co. 83.
2 Tuck. Bl. appx. p. 86.
3 H & M. 340.
4 H. & M. 31.
Swinb.22.
4 Bac. 336.
Ibid,