JANUARY, 1813. Lightfoot's executors and others V. In establishing the second point, to wit, that this was a fraud on the custom, he considers it as an act done by the father on his death bed, and no evidence of enjoyment or possession under it in the daughter, and therefore more in the nature of a testamentary act, and so void under the custom; and Colgin and wife. that in such cases there ought to be the clearest evidence of enjoyment under the grant; for this being not more than a third part of his estate, had she insisted on having the interest, during his life, he might have threatened to dispose of the testamentary part to her prejudice. In fact his opinion was that she would not be entitled to the interest during his life, it being a mere voluntary assignment of an equity, and passed no legal estate, and that the court would not decree it for her, if resisted, being merely voluntary, and nudum pactum; and though there was no reservation of the use of this property to the grantor during his life, yet that is inferred to be his intention from the circumstance of his not delivering the securities, (from which, as I understand, the monies were to be received during his life;) and in this respect it was likened by the judge to the case of Hall v. Hall. But in the case before us, we are not left to infer the intention to keep possession of slaves, securities, and every thing, during his life, for it is expressly so stipulated in the deed. 4. sect. 11. 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, which may never take place; yet a fraud it is said may be committed (a) 1 Fonb. ch. against that right. (a) The property of the wife, nay even her contingent orphanage rights, under the custom, is a cause of advancement of, and consequently inducement to marriage, and why not the property of the husband? The husband may yield these his rights by a contract before marriage, and so also may the wife, by receiving a jointure: they are a subject of contract so a child of a free man may compound or release to the father the orphanage part for a proper consideration, and (ƒ) 1 Atk. 63, will be bound in equity by such contract. (ƒ) The nature of Medcalfe, &c. v. Medcalfe, &c. these rights appears to me therefore to be very similar; as to those of the husband, they are recognized by our courts, as an interest against which a fraud may be committed; and as to JANUARY, those of the wife and children, if the common law was origin- 1813. ally what judge Blackstone says it was, and had so remained Lightfoot's exe'till this day, the decisions under the custom above referred to, and others, fully satisfy me that they too would have been recognized as rights against which fraud could be committed. 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 this 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 cutors and others Colgin and wife. JANUARY, bottomed, in part at least, on such variant details. This, 1813. however, I believe, cannot be shewn, but that, on the contrary, those decisions relied on, as applicable to the present case, are bottomed on the aforesaid incapacity of bequeathing, and which, it is manifest, is common to both countries. Lightfoot's executors and others V. Colgin and wife. cases abr. 278. tract of this But suppose, since the abolition of the custom of London, by the statute of II. Geo. 2. ch. 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 (a) See this sta- Custom may by contract retain it, as the law of their case. (a) tute in 2 Eq. The wife, however, acquires no other or farther rights than she would have had, if the custom had remained the law of the land; yet here is a contract which we would all admit (b) See a case ought not to be evaded by any shift or contrivance; (b) the under a con- husband in this case, it is true, has a right to throw away his kind, Lucas v. property, to give it away, &c.-but he cannot bequeath the Lucas, 1 Atk. 270. whole of it from his wife; he has made a contract not to do so; and he is not, by shift and fraudulent device, to evade his solemn contract. This contract, however, if I am correct, is only equal to the law,―gives no greater or other rights and therefore the courts could not interpose, to prevent an evasion of it, on principles which would not equally apply to a case arising under the custom or law. But it is contended that, by our law, the husband may dispose of his property from his wife in any way, except by will; and that if it is not a testamentary act, all is safe. Suppose he conveys his personal estate to trustees to suffer him to keep possession and enjoy for his life; afterwards, to such uses as he by his will should declare; and, in default thereof, to A. B. and C., his children, &c. in exclusion of his wife he may finally bequeath it to her or to strangers, but he dies without a will. He enjoys the property for life, has at his death the power to bequeath, which he omits to exercise, and so the case is left; his neighbour makes a like disposition of his property by deed, but makes a will and appoints the same children, who JANUARY, 1813. cutors and others were mentioned in the deed, to take the use, after his death. Each of these men leave a widow. For what good reason will the widow of the second receive a third of her husband's per- Lightfoot's exesonal estate, when that of the first gets nothing? I cannot perceive any reason which is satisfactory to me for such diversity; nor would it take place, I apprehend, in England, if Colgin and wife. both cases were decided there, under the custom, as I think will be manifest from the case of Turner and wife v. Jennings, &c. 2. Vern. 685, & Fenb. Bk. 1. ch. 4. § 16. It is true the letter of our statute is not violated in the first case above supposed; but if the wife, by that device, should be deprived of her thirds, the statute would be little more than a letter.--That the case before us is more complex, guarded, and intricate than that put, may be very true; but, I believe, on a fair examination, and which I will endeavour hereafter to give, it will not be found to be essentially variant or stronger. So, in case of a donation mortis causa. This is not a testament, yet it is so much in the nature of one that it will not deprive the widow of her share, under the custom, according to British decisions. (a) Would it deprive her of her thirds under our law? It is, (a) Fonb. Bk. 1. however, a disposition of the estate otherwise than by will; ch. 4 § 16. n. p. and if that is the only criterion to go by, it would. Upon the whole, when I reflect that our legislature, at a very early day, limited the power of bequeathing, as above stated, borrowing the idea from what was then the custom; when they afterwards borrowed the statute of distributions from that of England; and, in the place where that statute reserves the custom, &c., they introduce the same principle, so far as it respects the wife; at which time, I must presume, they were well acquainted with the decisions of the courts on the principle so engrafted into the statute, and were willing to abide thereby; I think it will be safer to be governed by those principles, so repeatedly acknowledged and acted upon, than to leave the parties at liberty to devise shifts and contrivances to violate the spirit of the law, thereby reducing it to a dead letter. It is argued, however, that to apply the decisions under the custom to our law would render wives independent, and encourage rebellion, 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 1813. Lightfoot's executors and others V. JANUARY, ments is the consequence there, and soon would be here. By this means, the wife is rendered more independent there, than she was under the custom: she can make the house and bed of her husband as uncomfortable as she pleases, and loses nothing by it whereas, if he could, by absolute gifts to his Colgin and wife. children, or by seeking abroad those comforts he is denied at home, leave her penny less at his death, she might find it her interest to conduct herself better: as, therefore, I would deprecate an alteration of the law, in this respect, so would I any course of decision that may tend to render it nugatory, as resulting in the same consequences.-It has also been argued that no decision of this kind has taken place, in this country, except the case of Cooper v. Brown, decided by the late Chancellor WYTHE, who applied these doctrines to a case which I think was not as strong as the present; and this silence is taken as a proof that our courts do not consider these principles as applicable to our law.-I should rather take it as a proof that the case above referred to, which was not appealed from, and the present, are probably the only cases of a flagrant attempt of this kind; but if they are not, they are the only cases brought before the courts; and because principles of equity have not been acted on, we are not to conclude that they do not exist.-The question whether they do exist, as applicable to our law, is now for the first time to be decided by this court; the importance of which question I hope will be some apology for the extensive view I am endeavouring to take of the subject. 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 him. self 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 |