#### Job Peirce *versus*Orlando Thompson.

The holder of a promissory note bequeathed to his daughter and her heirs and assigns, all tlie money due to him from the maker, who was her husband, and appointed the husband his executor. The husband inventoried the note, and in his administration account charged the amount of the legacy as paid, which charge was allowed; and afterwards, being insolvent, in consideration of the delivery of the note to him, he conveyed his real estate to a trustee for the use of his wife. It was *heldi*that the legacy vested immediately in the husband, it not being a chose in action ; but that if it were such, it was reduced by him to possession ; that the note was extinguished before the execution of the deed ; and that the deed was consequently made without consideration, and was void against prior creditors of die grantor

This was a writ of entry, in which the demandant counted on his own seisin, and a disseisin by the tenant. The tenant pleaded *nwl disseisin.*

The parties stated a case.

The demanded premises were formerly parcel of the farm of Nathaniel Thompson, who, on January 11, 1834, conveyed them to the tenant, by a deed containing the following words : “ Know all men, that I, Nathaniel Thompson, of &c., in consideration of two hundred and forty-eight dollars, received by me by the surrendering up to me and cancelling by my wife, Joanna Thompson, of three several notes of hand, which, her father, John Tinkham, deceased, held against me at the time of his death, and the proceeds of which notes he bequeathed by his last will and testament to my said wife, the said notes, together with the interest, amounting now to the above sum, I do, by these presents grant, bargain, sell and convey to Orlando Thompson, of &c., trustee of my said wife, the following estate, &c. To have and to hold the *392premises from me, the said Nathaniel, and my heirs, to him sa*d Orlando, in trust for my said wife, and his successor or successors, for the use and benefit of my said wife and her heirs and assigns for ever.” The sum mentioned in the deed, as the consideration, was the full value of the land conveyed

The tenant was the son of Nathaniel and Joanna Thompson. The three notes referred to in the deed, were dated February 19, 1821, July 24, 1821, and January 3, 1826, respectively, and were all payable on demand.

Tinkham died in April, 1829, and by his will, devised to his daughter, Joanna Thompson, certain real estate, and household furniture, “ together with all the money due to me from her husband, Nathaniel Thompson, to her and her heirs and assigns for ever.” Nathaniel Thompson and John Tinkham, a son of the testator, were appointed executors and accepted the trust. The three notes held by the testator were inventoried and appraised with his other estate. On November 2, 1830, the executors settled in the Probate Court, their account, in which was the following item, charged by the executors 'and allowed by the court : “ Paid legacy to Joanna Thompson, being in notes and furniture, $418,02.” The notes referred to were the three notes mentioned in the deed to the tenant.

On February 19, 1834, the demandant sued out a writ against Nathaniel Thompson, and having recovered judgment against him at the August term 1834, of the Court of Common Pleas, caused the execution to be extended on the demanded premises. This judgment was founded on a debt due to the demandant long before the execution of the deed to the tenant.

It further appeared, that judgments were recovered against Nathaniel Thompson, at the same August term of the Court of Common Pleas, for debts due to other persons before and at the time of the execution of the deed ; that he was at that ame aware that he was insolvent; and that all his attachable e* tate. including the demanded premises, had been since set off in part satisfaction of the judgments recovered against him

If the Court should be of opinion, that the demandant could maintain his action, the tenant was to be defaulted ; otherwise, the demandant was to become nonsuit.

*393*Eddy*and Stevens, for the demandant,

cited Clancey on Hush, and Wife, 3, 155, 262 ; Com. Dig. *Baron and Feme,*E 3 ; *Commonwealth v. Manley,*12 Pick. 175 ; *Hobart*v. *Stone,*10 Pick. 215 ; Toller, 347 ; Co. Litt. 240 ; *Clark*v. *Wentworth,*6 Greenl. 259 ; *Lemon*v. *Thompson,*1 Pennsyl. R. 482 ; *Palmer*v. *Trevor,*1 Vernon, 261 ; Com. Dig. *Chancery,*2 *M*9 ; *Lumb*v. *Milnes,*5 Vesey, 517 ; *Jacobs*v. *Amyatt,*1 Madd. R. 376, note ; *Krause v. Beitel,*3 Rawle, 199 ; *Williams*v. *Thompson,*13 Pick. 298.

*Wood,*for the tenant,

cited *Bullard*v. *Briggs,*7 Pick. 533 , *Ward*v. *Shallet,*2 Ves. sen. 16.

Shaw C. J.

delivered the opinion of the Court. Upon the facts stated in the report, the Court are of opinion, that the conveyance made by Nathaniel Thompson to the tenant, in trust for the grantor’s wife, was strictly a voluntary settlement. It was made without any valuable or legal consideration moving either from the wife, or from any other person, to the husband.

Thompson was indebted to Tinkham, his wife’s father, on several notes ; Tinkham, by his will, bequeathed this debt to the wife and died, leaving property more than sufficient to pay all his debts. By this bequest the property vested presently in the husband ; *Commonwealth*v. *Manley,*12 Pick. 173 ; and therefore was the same in legal effect, as if the bequest bad been in terms to the husband. Such a bequest by the creditor to the debtor, if there are assets without it, for payment of debts, is an extinguishment. *Hobart*v. *Stone,*10 Pick. 215. But were this a chose in action, which it was necessary for the husband to reduce to possession, which we think it was not, it was effectually reduced to possession in the present case. The husband, as one of the executors, inventoried the notes, and afterwards acknowledged to have received them, as part of his legacy under the will, and had credit allowed as for so much paid, in nis account as executor. The notes therefore were effectually extinguished and discharged, before this conveyance was made, and the conveyance was made without any valuable consideration. A post-nuptial settlement, though it may be good against heirs and other volunteers, is not valid against creditors and purchasers, unless made *394upon valuable consideration. *Bullard*v. Briggs, 7 Pick. 533 , *Clark*v. Wentworth, 6 Greenl. 259. The broad distinction between this and the case of *Bullard*v. *Briggs*is, that there the wife relinquished an actual interest, which was under her own control, and which could only be alienated with her consent, which went to her husband, and might increase his funds for the payment of his debts, to an extent equal in value to the amount she received. It was therefore an exchange of one valuable interest for another, and not a voluntary gift. Here it was a gift purely voluntary, made by an insolvent man, and cannot be supported against the creditors of the grantor.

*Defendant defaulted.*