JANUARY, 1813. Lightfoot's executors and others V. share of his personal estate, as if he had died intestate. By referring to the case of intestacy by which to fix and explain the degree of her claim, it excludes, as forcibly as possible, the idea of her having a more exalted right to the personal estate, during the coverture, than any other distributee, and places their claims upon the same foundation.-Her renunciation of the Colgin and wife. will gives her no higher pretensions than if her husband had died intestate :-in one case she claims through the executor ;in the other, through the administrator.-Acts which he himself could not avoid in his life time, cannot be avoided, I presume, by those who must claim in his right, and merely as his representative.-If he had devised the property in question, it would not have passed by the will; and her renunciation of the will would not better her case, because, under the act, she must take as if he had died intestate; and it follows, by a necessary consequence, that he could not, by operation of the act, under any consistent construction of it, be made to die intestate as to property which he could not devise.-This view of the subject would seem to exclude the necessity of saying any thing of the cases decided on the custom of London; but, as they have been much relied on in the argument, I shall take a brief view of them.-Admitting that the custom is a part of the common law, as has been contended, and not an exception to it, as all customs are said by Blackstone to be, and that our acts of assembly have adopted or re-enacted the common law, these decisions upon the custom will be found, on examination, to be very unsafe expounders of those acts.They contain principles entirely novel in this country, and by no new construction, however tortured, to be extracted from the acts themselves, or, in my opinion, from the naked rule of the supposed common law itself.-In the case of Fairbeard v. Bowen, (a) it was decided that a voluntary judgment confessed (a) 2 Vern. 202. by a freeman of London shall not prevail against a simple contract creditor, or against the widow, but she must have her share according to the custom :-and, in a note to that case several cases are referred to, to shew that the widow and orphan of a freeman are in the nature of creditors, and that any loss happening by the insolvency of the executor must be borne by the testamentary or dead man's part.-This doctrine does not result from any fair exposition of our acts of assembly, 1813. Lightfoot's executors and others V. JANUARY, or of the supposed rule of the common law :—a bare right to a reasonable share of the husband's estate, of which he might die testate or intestate, without any restraint upon him in the use of it during the coverture, makes the wife nothing more than his representative, and could not place her in the rank of a Colgin and wife. creditor:-She has never held that rank under our law.― The inference I draw from this is, that all the consequences which make up the doctrine relied on, (if I am to admit that the custom grew out of the common law,) must have been superinduced by the application of that rule to the peculiar situation and circumstances of the citizens of London, or by engrafting on the rule the local usages of the place. Thus, we know that the doctrine of waste, in this country, differs from the doctrine in England, though extracted from the same law.― This inference is much strengthened by a nearer view of those customs, from whatever source they may have sprung.-Blackstone, (1st vol. p. 75.) says, "this custom, and many others are "contrary to the general law of the land;" and, in p. 76, he says, "the customs of London differ from all others in point of "trial;-they are tried not by jury, but by a certificate from "the lord mayor and aldermen.”-For all that appears to the contrary, these decisions upon the custom may have been bot. tomed on some of these certificates. If it were admitted, then, that the custom was nothing more originally than the rule of the common law, and also that our acts adopted that rule, these decisions upon the custom would be very blind guides in conducting us to the true exposition of our statutes.-The cases of Turner v. Jennings,(a) of Edmonson v. Cox,(b) Coomes v. Elling and wife,(c) Tomkins v. Ladbroke,(d) and a long list of others that were cited, appear to me to have no bearing on the question now to be decided, except to prove that if a freeman of London disposes of his property by an incomplete conveyance, or in such manner as not to take effect until his death, it is a fraud upon the custom. These cases, if they apply at all, have more bearing on the second point that has been made in this cause. As to the doctrine that an incomplete conveyance would be a fraud upon the custom,—so far as it can be made to apply to a conveyance which did not divest the grantor of the property, so as to prevent his dying intestate in relation to it, or disposing of it by will, I presume in such case a conveyance (a) 2 Vern. 612. 1813. Lightfoot's exe of that description would not defeat the right of the wife under JANUARY, our law. But the deeds in this case, in my opinion are not exposed to that objection.-As to the interest intended to be passed by them, and which is the subject of this controversy, cutors and I see nothing, in the deeds, which left to the grantor any control over that interest incompatible with the grants after the Colgin and wife. execution of them. The reservation of a life estate in some of the property conveyed will be noticed in the examination of the second position. That position is, that the deed of trust sought to be set aside, is not absolute, but 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 prov ed, and, if it was, I am not satisfied that it would affect the case. The deed is said to be only testamentary, because (as the phrase is in one of the cases upon the custom,) the grantor did not dismiss himself of the property:-but I think the answer is that he did dismiss himself of his whole interest in the reversion, 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; but 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 founded 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 the husband of the power in his life time of disposing of others V. 1813. JANUARY, any portion of his interest, especially in slave property, would limit his means of advancing his children, and give to his wife a higher claim than that even of a creditor under some circumstances ;-a consequence which cannot be admitted by any fair construction of our law. Lightfoot's exe. cutors and others, v. Colgin and wife. 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 va lidity 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 bis 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," 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 1813. cutors and others receive their debts, their wives and children might be reduced JANUARY, to want. So, in the case before us, although some compassion is, perhaps, due to the wife, as much, or more, is due to the Lightfoot's exechildren, who, or whose wives and children, may, by setting aside the deed, be left in a measure unprovided for.-I mention this to shew, that this consideration of compassion ought not Colgin and wife. to influence us much, as it applies on both sides, and ought rather to preponderate in favour of the party otherwise unprovided for. I must also remark, that if this decision is to be influenced by considerations of a supposed inequality between the relative provisions for the parties, (the amount of which, however, is not proved in the cause.) it will form a rule in cases in which no such inequality exists and that, if a deed elearly fraudulent under its actual circumstances is to be set aside in this case, the next effort will be to vacate one which is merely considered fraudulent by being voluntary. In Russel v. Hamond, 1 Atk. 15, it is held that the circumstance of a deed being voluntary is considered as an evidence of its being fraudulent. Where are we to draw the line between the two cases? between that of a deed impeached as fraudulent by positive acts of fraud attending its execution, and one which is only inferred to be fraudulent by being shewn to be voluntary? We are getting into a wide field; one which would set aside, in favour of the wife, a deed however fair, and however inconsi. derable as to the provision it conveys to a child, if it be merely voluntary, or without a valuable consideration! Admitting this deed to be 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 thing, might avoid any fraudulent conveyance made to deceive or defraud him of that right or debt : (a) but it is (a) 3 Bac. 307, and 3 Co. Rep. said that, if the conveyance was precedent to the right or debt, 83. Twine's case. there was no way to set it aside ;(b) and, again, it is held, that (b) Ibid. he who hath a right, title, interest, debt or demand mere puisne, shall not avoid a fraudulent gift or estate precedent, by the common law.(c) It is by these principles of the common law, (c) 3 Co. 83. |