#### *Elizabeth Glenn vs. Eleanor Glenn, ex'x. and devisee of John*Glenn, *dec.*

chancery.

Case 53.

Appeal from the Bullitt Circuit; Padi. I. Booker, Judge.

*Husband and wife. Alimony. Devises. Election.*

Bill of Elizabeth Glenn.

May 8.

Chief Justice Bibb

delivered the Opinion of the Court.

In 1822, Elizabeth Glenn, the widow of John Glenn, deceased, exhibited her bill, against *286Eleanor Glenn, executrix and sole devisee oí 3ol\ti Glenn, against Silas Burks, and against the heirs oí Polly Hill, who was afterward Polly Childress; and against R. O. Childress the husband of said Polly:

Deed *of*gift,

Facts of the case.

*1st.*For Alimony.

2nd. To set up, and establish and pursue, he? rights and consequences under this writing.

> “North Carolina, Rockingham county: To all people to whom these presents may come. I John Glenn, jun. of county aforesaid, send greeting: Know ye, that I the said John Glenn, for and in consideration of the natural love and affection which I have and bear unto my step daughter, Polly Hill, and divers good causes and considerations, me hereunto moving, have given, granted, and *by these*presents do give and grant *unto the*said Polly Hill, her heirs and assigns forever, the following negroes, to-wit: Thomas, Dolly, Easter, Edmond and Fanny, together with their future increase;-'but to be unde? the express proviso, and *condition, that my*wife Elizabeth and myself, have and keep the said negroes m our peaceable possession during our natural lives. In Witness whereof, I have hereunto set my hand and seal this--davof January, anno domini, 1800.

> (Signed) *John*Glenn, (Seal.)”

> “Signed,sealed, and delivered, in the presence of

> *Thos. Henderson.*

> *Jl. Henderson.”*

3rdly. For her distributive share of the slaves and personal estate as widow of said Glenn.

It appears that said John Glenn, married the complainant, then a widow, in North Carolina, shortly before the date of the instrument of writing; the slaves therein mentioned were the property of said Elizabeth, before the marriage; the husband was possessed of them in North Carolina; and abandoned his wife about the year 1811, and *came to*Kentucky, bringing with him the slaves or some of them; about the year 1813, he married the defendant Eleanor, and died in 1821, having first devised his whole estate to his second wife, and appointed her sole ex*287ecutrix. She obtained letters of probate in Bullitt county, in this State, wherein he died.

Answer of the defendant.

Decree of tbe circuit court.

Suit for alimony not maintainable after the husband’s death.

Effect of the husband’s deed of gift to the stepdaughter, of slaves acquired by the marriage, reserving an es*288tate to the grantor and their Kvesrin abasóte-’1 tween widow fncliiUSi’ . .see 8 6V1"

*287The executrix resists the claim under the deed; relies on the statute of limitations, and also a verdict and judgment in detinue in her favor at the suit of the said Elizabeth, founded on said bill of sale. Finding that complainat was the wife of said Glenn, the executrix put in her claim as a creditor for money which Glenn received of her after the marriage, in Kentucky, and for services of herself and children by her former husband, yet claiming as s ol devisee.

Burks had purchased two of the slaves of Glenn, in his lifetime. The court dismissed the bill as to Burks; enteredan interlocutor, by which the claims, for alimony and under the deed of gift were rejected; admitted the claim of the widow, (the complainant) for her share of the slaves of which Glenn died possessed, and of his personal estate after payment of debts; admitted the executrix to come in as creditor for the money which the testator had received belonging to her; rejected the claim for the services of herself and children, and appointed a commiasioner to state and report the accounts according to the principles of the decree; from this the complainant with the assent of the defendant appealed, and by consent the suit was dismissed as to the husband and heirs of Polly Childress, without *prejudice to their*claims.

The claim for alimony was properly rejected. A bill after the death of the husband, for alimony from the time of abandonment to her husband’s death, is a new species of suit, without precedent, and against the principles upon which a suit for alimony is sustained.

The writing from the husband made in North Carolina is of such singular character, that it has produced much perplexity. Judge Mills is of opinion, that it ought to be supported in equity, as good *inter partes,*even if it were ineffectual at law; that the step-daughter was a trustee for the use of Glenn and wife during their joint lives, and for the survi*288vór during life; that as the property was of the eg;tate of the wife before her marriage, and the intent j¡ie ([eec¡ was to provide for her in case she súrvived, the consideration is such as to merit the countenance and support of a court of equity, ^uc^e Owsley is of opinion, that the wife of the grant°i’) can take nothing by it, even if it were good as to the grantee Polly, after the determination of the two lives. The Chief Justice is of opinion, that after the dismission of the bill by consent as to the representatives of Polly Hill, and after the trial in detinue, fully and fairly had upon the merits, the complainant is concluded and barred from setting up any claim under that deed: the bill being for the only two slaves demanded by the action of detinue relied on by the answer: therefore, *that no*opinion on the deed of gift is called for. The result of these opinions is, that the complainant can have no relief or benefit from her claim against the executrix by force of that deed.

Dissent ofthe Chief justice,

The claims of the executrix for servicies of herself and children were properly disallowed. The circumstances under which those services were rendered repel any implied assumpsit by Glenn to pay for them otherwise than by the support and maintenance which they did actually receive.

Judges Mills and Owsley are of opinion, that the decree is correct in admitting the claim of Eleanor, as a creditor, to the amount of the money which the testator received after his marriage with her; that the marriage being void she is at liberty to reclaim her money, which he received as supposed husband; that she is at liberty to protect the share -devised to her from being lessened, by asserting her claim as creditor in common with other claimants upon that fund; that she is not bound, to yield her claim as creditor because she is executrix and residuary devisee, nor to elect ysdiether she will claim as creditor or legatee, any more than another creditor would have been if made executor and residuary devisee.

The Chief Justice is of opinion that, from the length of time which has elapsed since that money *289was received, the circumstances under which it was received, the co-habitation of the parties, and the -devise to her of his whole estate, real and personal, the utmost which a court of equity ought to permit the said Eleanor to do, is, to make her election to abandon the devise to her in consideration of the void marriage, and come in as creditor, or yield her «laims as creditor and take as devisee. If she is permitted to come in as creditor, it is by courtesy, not as of strict right. The circumstances under which Glenn was permitted to receive and use the money, the manner in which the parties lived together, would seem to negative the idea of any assumpsit or debt from him to her. It is true, the marrige is void in law, (except as to the issue of such second marriage living the first wife, the issue being legitimated by our statute,) and thus one of the considerations upon which the said Eleanor permitted Glenn to use her money has failed. But the devise to her is as wife, in consideration of the said marriage, and their intercourse. The testator so calls her in his *will*and in the devise to her. He received the money of the defendant Eleanor as husband, and compensated it by support of her and the devise to lier as wife. She ought not to ho permitted to claim under the will as wife and devisee in consideration thereof, and also in opposition to it as no wife, and therefore, as creditor by indulgence and courtesy. By the devise to Eleanor, she is placed *by Glenn, the doable*husband, in a better condition than that of the lawful wife. It ill accords with the principles of equity to suffer Eleanor, the second wife, after having done the first wife the greatest injury, as appropriate!' of the person, affections and property of her husband, to inflict farther loss by lessening the lawful share of the lawful wife, by her double claim as creditor and residuary devisee. It seems to me that the devise to' Eleanor ought to be taken as made in satisfaction to her for that portion of money and property which she carried to Glenn: talcing all the circumstances connected with the devise to her as wife, so called in the will, and I cannot doubt that the devise was superinduced by the property he had received and the connex*290ion which had existed between them as man and wife; that connexion existed in fact until dissolved by death, and the will is the consequence and sequel of it.

Decree.

*Denny*and *Mayes*for appellant; *Crittenden*for appellee.

The dismissal of the bill as to Burks, the purchaser from Glenn, is approved by the whole court.

Certificate. — This cause came on to be heard oa the transcript of the bill, answers, exhibits, depositions, and proofs, and the arguments of counsel of both parties; whereupon, differences of opinion arose among the judges upon some of the questions in the case, the result of which, is, that the decree of the circuit court is to be affirmed. It is, therefore, ordered and decreed, that the said decree of the circuit court be affirmed, and that the cause be remanded to that court, for the purpose of proceeding to a final decree according to the principles of said interlocutor, and for such other and further proceedings as are conformable to the usages and. principles of courts of equity.

Appellee to be paid her costs in this court,