Ammon's Appeal

The opinion of the court was delivered, January 3d 1870, by

Read, J. —

In this case the auditor appointed by the Orphans’ Court made a very able report, which we have examined with great care and attention. Alfred Campbell, one of the legatees of Rebecca Campbell the decedent, made a voluntary assignment of his legacy to a trustee for the use of his wife, Elvira Campbell. This instrument was dated 24th June 1863, but was not executed until several months afterwards, and was kept at Campbell’s house, and was never in the possession of the trustee. Campbell was indebted upon a note for $4.75, dated December 1st 1862, payable nine months after date, for goods bought at the sale of personal property of decedents. Charles H. Hays had a judgment before Squire Gormly for $9,75, with interest from 18th February 1860, upon which an execution attachment was served on 4th November 1863, on the administrator as garnishee of Alfred Campbell. On the 17th March 1863, Alfred Campbell commenced suit against the administrator to recover an alleged claim coming to him from the estate, which he failed to sustain; and on the 16th March 1865, there was a verdict for defendant, on which judgment was entered on the 25th November 1865. The record costs were $42.06, and the defendant’s bill $239.75, paid out of the estate by the administrator. Upon this judgment, an attachment execution was issued on December 16th 1865, and attached all moneys, &c., in the hands of the administrator, and summoned him as garnishee.

It was also in evidence that the constable who served the execution on Hays’ judgment in 1863, could find no property out of which he could make the money, and it was returned “no goods,” and that he had another execution in favor of W. B. McGaffick, during the same year, and that was also returned “no goods.”

Campbell appears to have been a thriftless man, without property of any kind, except the legacy which he assigned to his wife. This is only a general outline which is filled up by the auditor. He held the assignment void as against these debts, and directed them to be paid, and the balance to be paid to the trustee of the wife. The court below reversed this decision as regards the record, costs and defendant’s bill, and decreed that the same should not be paid out of Alfred Campbell’s legacy, and this is assigned for error.

In Coates v. Gerlach, 8 Wright 43, Judge Strong said (p. 46), “ upon this branch of the case it is conclusive against the wife, that the deed was for all the husband’s real estate, and indeed for all his property, so far as appears, except some farming stock, subsequently sold by him for $500. A conveyance that denudes a husband of all, or the greater part, of his property, is much more than a reasonable provision for a wife; for in considering what is and what is not a reasonable provision, the circumstances of the husband are to be regarded — his probable necessities as well as his debts. Equity will not assist a wife to impoverish her husband — accordingly, it has always been held that a conveyance to a wife of all or the greater part of a husband’s estate, is an unreasonable provision, which, if voluntary, a court of equity will not sustain. See 1 Fonblanque’s Equity, Book 1, Ch. 4, § 12, note (a), where the author remarks that “ if a conveyance be of the whole or the greater part of a grantor’s property, such conveyance or gift would be fraudulent; for no man can voluntarily divest himself of all or the most of what he has without being aware that future creditors will probably suffer by it: 2 Story’s Eq. § 1374, where the principle is clearly stated, with all the authorities.”

The same doctrine is to be found substantially in Larkin v. McMullin, 13 Wright 29, and in Mullen v. Wilson, 8 Id. 413. (See Ware v. Gardner, 38 L. J. N. S. Eq. 348, V. C. James and cases cited; Smith’s Manual of Equity, p. 88, 89.) Peachey, in his, treatise on Marriage Settlements, p. 197, says “ It has, however, never been disputed but that a.subsequent creditor would participate in the benefit of a decree instituted by a prior creditor, and would have the same equity for having the property applied.. Again, no distinction has been drawn in such cases between the-different classes of creditors, that is, between those whose debts existed at the time the deed was executed, and those who became creditors subsequently, or that any priority can be given to those who were creditors at the date of the instrument over the subsequent creditors; all would, in fact, participate pro rata.”

These authorities support the views taken by the auditor, which reach the real justice of the case, for it would be clearly unjust to suffer him, under cover of his wife, to evade the payment of the costs of an unsuccessful suit against his mother’s estate, and to saddle them on his unoffending brothers and sisters.

Decree reversed, and the report of the auditor confirmed, the costs to be paid out of the legacy to-Alfred Campbell.

Record remitted to Orphans’ Court to carry out this-decree.