Groverman v. Diffenderffer , 11 G. & J. 15 ( 1839 )

Archer, J.,

delivered the opinion of the court.

The decree of the chancellor, so far as it has placed in trust all the property of Mrs. Groverman, and as to the limitations of trust by it prescribed, is objected to by this appeal, and it is insisted that, as the ante-nuptial settlement has been set aside as fraudulent, and there is no proof in the record of the terms originally agreed on, as the terms of settlement, the chancellor had no other guide, than the terms set out in the complainant’s bill, and that his decree should have carried them out, at least substantially.

The bill filed in this cause seeks to set aside an ante-nuptial settlement as fraudulent, and also a release executed by Mrs. Groverman to John Diffenderffer her father, anterior to the marriage, and it' further seeks to recover from the estate of her father, all sums of money due to her from her father, as guardian or trustee, in pursuance of a decree of the Court of Appeals at December term 1831. So that the equity of the wife to some settlement is unquestionable: the husband seeking not only to remove out of the way fraudulent deeds, but to recover the wife’s portion from the estate of her father.

, What shall be the nature, extent, and character of this settlement which is to be made, must depend upon the proof hereafter exhibited in the cause, and the extent of the recovery to be had. The husband seeking equity is compelled to do equity, and a court of equity will make him provide for her, and where a settlement is decreed, it is the invariable practice to include a provision for the issue of the marriage, unless the wife waives the right to the settlement, according to the manner prescribed by the practice of a court of equity.

The settlement decreed by the chancellor was not, we presume, founded upon the wife’s equity. The deed declared to be fraudulent and void, principally, if not entirely, embraced real estate. If these are to be settled on the wife, it should be in pursuance of some understanding or agreemént, proven to have existed anterior to 'the marriage.

We can perceive no evidence in the record, which will authorize us to sanction the terms of the decree, nor do we think we should be justified in making the settlement conform to the allegation of its terms in the bill, in the absence of proof. It would lead to pernicious consequences, if the averment by the wife, after marriage, in relation to the character of a settlement to be made upon her, should be taken as evidence, and form the foundation of a decree. Although such might be the result here, the danger would be, that her admissions, thus made in a bill, would tend to strip her of those customary guards, which a court of chancery for the wisest purposes has thrown around her interests.

We think that this decree should be reversed, so far as the same settles all the property of the wife in the mode therein designated, and that it should be remanded to the Chancery Court, that proof should be taken of the ante-nuptial agreement, if any existed, and that it may be decreed in conformity to such proof, and that if no proof shall be found to exist, of such agreement, that then the chancellor may in the progress of the cause, when he shall have the necessary evidence before him, decree such a settlement as shall conform to the wife’s equity, unless the same shall be waived in the accustomed mode.

DECREE REVERSED IN PART AND CAUSE REMANDED.