#### *Dr. Francis Porcher*vs. *Sarah B. Gist, her children, et al.*

A settlement executed in 1814, and not recorded as directed by the Act of 1785, is good between the parties: the property was settled to the use of husband and wife during their joint lives, remainder to the use of the survivor for life, &e.: Held, that creditors of the wife, whose debts were contracted after the death of the husband, she being the survivor, could look only to her life estate for payment.

By marriage settlement, negroes were conveyed to the trustee cfor the use of5 husband and wife ‘ during their joint lives, and for the use of the survivor during his or. her life,3 with remainder to the use of the issue of the marriage: there was issue of the marriage, and the wife survived: *Heidi*that upon the death of the husband, the wife being in possession of the negroes, her estate for life became a legal one, and was liable to levy and sale under execution atlaw against her. *Rice*vs. *Burnetii*and *loor*vs. *HodgeSi*Sp. Eq. 579, contra.

The equitable interest of *cestui que trust*may, in Equity, be reached by creditors.

*Before*DeSatjssure, Ch., *at Charleston, April,*1831.

This case will be understood from the circuit decree, and the opinion delivered in the Court of Appeals. The following is the circuit decree. *

DeSausstjre, Ch. The defendant, Sarah B. Gist, before *210her marriage ‘with her late husband, States Gist, joined with him in executing a marriage . settlement, dated in Dec., 1814, and appointed Thos. W. Bacot, and Henry H. Bacot, trustees thereof, who joined in executing the deed. The marriage was shortly after solemnized. But the settlement was not recorded until the 6th December, 1815, more than three months after the solemnization of the marriage. The property settled, consisted of twenty-six negroes, and a certain undivided interest in real estate. The settlement was to the joint use of husband and wife during their joint lives; to the survivor for life, and to the issue of the marriage after the death of the survivor — with power to the trustees to sell or exchange any part of the property, and to invest the proceeds, -or hold the exchanged property, to the same uses as the property conveyed. The parties were of full age at the time of executing the settlement. -States Gist died in 1822, leaving assets to pay his debts, and leaving the said Sarah B. Gist, his widow, and two children, Mary and Elizabeth, the issue of the marriage, who are now infants- of tender age. On the death of her husband, Sarah B. Gist, being-entitled by the terms of the settlement to a life estate in the settled property, took possession thereof, and in the year 1824, the trustees being willing to relinquish their trust, complainant was requested by Mrs. Gist, to accept the appointment in their place, and consented at her earnest request. A petition was then presented to the Court of Equity, setting forth *the deed,*and the above stated facts ; upon which the Court, in January, 1825, made the following order : *“*That Francis Porcher be, and he is hereby appointed in *the*place and stead of the petitioners, (the trustees,) the trustee of Mrs. Gist and her children, . under the said marriage settlement; and that a notice of this substitution be endorsed on *the*original deed, and recorded in the proper office, according to the provisions of the Act of Assembly in such case made and provided: And it is further ordered, that said petitioners from their said trusteeship, be and are hereby exonerated- and discharged.” This order has never been endorsed on the settlement, or recorded in the office of the *211Secretary of State. After it was made, two of the slaves settled, were sold by Mrs. Gist, and the complainant joined in the deed of transfer to the purchaser; and for the purchase money, the trustee took the joint and several bond of Mrs. Gist, and her sister, Peter Anne, for three hundred and sixty-five dollars, and the note of hand of Mrs. Gist, for two hundred and eighty-five dollars. Peter Anne died, leaving her will, by which she appointed complainant and defendant, Sarah B. Gist, her executors ; the latter of whom qualified. The complainant at the request of Mrs. Gist, entrusted her with the bond, and the note taken by complainant, to secure the proceeds of the sales of the two negroes, and Mrs. Gist refuses to deliver them up, and declares, that she considers the settlement null and void, and the substitution of the trustee equally void, neither of them having been recorded, and that she executed the settlement without knowing the terms of- it — although she had it in her possession before it was executed a sufficient time to have read it, and signed it voluntarily. Since the death of States Gist, his widow has contracted certain debts, and the defendant, Jacob Hurtz, has obtained a judgment, and taken out an execution thereon against her, and under it has _ levied upon six of the negroes mentioned in the settlement. The complainant prays that the liability of the trustee may be ascertained, and the rights of the defendants; and may be decreed upon. ^

There is no difficulty in determining that, as between the parties to this settlement, it is good, notwithstanding it was not recorded in three .months; the want of which record could under the Act affect only subsequent creditors of the husband, as to whom, if there were any, it would be void; but there are ‘none. Mrs. Gist, in her answer, alleges no fraud in the execution of the settlement, and her mere allegation, that she was ignorant of its provisions, can avail nothing, since she voluntarily executed it, after having it in her possession a sufficient time to read it and have it explained to her, if she desired such explanation ; and she was of full age, and perfectly competent *212to the contract. The interests of the issue are now involved, and must be protected.

The order, substituting the complainant as trustee, in place of the trustees mentioned in the settlement, was perfectly regular, and is not invalidated for want of being recorded. If it was, the only effect would be to leave the original trustees where they were. The Act authorizing the substitution, directs the order to be endorsed and recorded, but does not invalidate the order, if not recorded. It merely is directory, and no time is fixed within which it is required to be done. It may be done now. ,

Under the settlement, Mrs. Gist had a life estate, as a *cestui que*trust, in the settled property. But the legal estate is in the trustee, and is not subject to an execution against the *cestui que trust.*Whatever may be the rights of the defendant, Hertz, under his judgment, or as creditor — upon which no decision is intended to be now made — they cannot now be enforced by levying his execution on the property settled; nor can they be provided for by any decree that could be properly made in this case. The complainant, as trustee, is entitled to have the marriage settlement in his possession, and the .order of this Court ought to be endorsed upon it and recorded. The bond of the defendant, Mrs. Gist, and of her sister, Peter Anne Porcher, and the note of the defendant, Mrs. Gist, should be delivered to the complainant. The defendant, Hertz, should be enjoined front proceeding, under his execution against Mrs. Gist, to sell the property settled, and should be compelled, if he has already taken the property, to deliver it back to the trustee, or the defendant, Mrs. Sarah B. Gist.

It is, therefore, ordered and decreed, that the defendant, Mrs. Gist, do deliver up to the complainant, Francis Porcher, the marriage settlement and the bond of herself and her sister, Peter Anne Porcher, and also her own promissory note. It is further ordered and decreed, that the former order of this Court, substituting the complainant as trustee, in place of the original *213trustees of the settlement, be now endorsed on the settlement, and recorded in the manner required by that order. It is further ordered and decreed, that the defendant, Hertz, be enjoined from proceeding, under the execution at law, against the settled property, and that, if any part thereof has been taken, under the said execution, it be delivered up. It is further ordered and decreed, that the defendant, Mrs. Gist, be restrained and enjoined from selling or disposing of any part of the settled estate, except in the manner pointed out and fixed by the settlement. The costs of this suit to be paid out of the proceeds of the trust estate.

From this decree the defendant, Hertz, appealed, and moved that the same be reversed, on the following grounds:

1. Because his Honor should have decided that the marriage settlement was void, on account of the want of recording in due time ; and that the negroes were liable to the execution of Hurtz, as the property of Mrs. Gist.

2. Because, if the Judge was right, in exempting the *corpus*of the property from sale, under the execution, yet he erred in not deciding that the life estate of Mrs. Gist was liable to sale by the Sheriff, under said execution.

3. That his Honor erred, moreover, in deciding that, whatever might be the rights of Hurtz, they could not be provided for by any decree that could be properly made in the cause; whereas, it is submitted, that, as the complainant prays the Court to determine his liability as trustee, and also the rights of the defendants, the Chancellor was bound to have settled them; and that a decree, subjecting the property to the payment of the d.ebt of Hurtz, could be properly made in the cause — the more especially as the Court had previously adjudged that Hurtz had no remedy at law against the *corpus*of the property, nor even against the *life estate*in it, whereby it was manifest, by the Chancellor’s own showing, that Hurtz was *remediless at law.*

4. That the Chancellor erred in perpetuating the injunction against Hurtz, and ought, on the contrary, to have decreed the *214sale of the property, and an assignment of the injunction bond, as a collateral, security to Hurtz, to make good any deficiency in the eventual sale of the negroes levied on.

*Moise,*for appellant.

The opinion of the Court was delivered by

O’Neali*) J-

On the appeal in this case, it has been contended, first, that the marriage settlement is void, on account of not being recorded within three months, and that the property is therefore liable to be sold, as the property of Mrs. Gist; second, that admitting the .marriage settlement to be good, still that her life estate is liable to be sold, in payment of the debt to Hurtz.

1. The Act, P. L., 357, (4 Stat., 656; 6 lb.) 636,) directs that all marriage settlements, entered into after its passage, shall be recorded, or lodged to be recorded, in the Secretary of State’s office, within three months from their execution; and if not so recorded, or lodged to be recorded, “ then the same, in respect to creditors, shall be deemed, and *is*hereby declared to be fraudulent ; and all and every part of the estate thereby intended to be *secured to such person or person's,*shall *be subject*and *liable*to the *payment and satisfaction of the debts due and owing by such person or persons, in as full and ample a manner, to all intents and purposes whatsoever, as if no such ■ deed, contract, or settlement had ever been made or*executed.” The Act of 1792, 1 Faust, 210, (5 Stat., 203,) amendatory of this Act, excludes the creditors of the husband before marriage, from questioning the settlement.

The terms of the Act of 1785 are very general, and might, without any violence to the words, receive the construction contended for. But, as the Chancellor has very well observed, the marriage settlement is good as between the parties, notwithstanding it has not -been recorded. It is only fraudulent as against creditors, and is, as *against them, the same as if no such deed, contract or settlement had ever been made or executed.*The effect of this provision is to leave the property in the *215condition that, by law, it would have been in, had no settlement been executed. The personal property of the wife^'wre *mariti,*on marriage, is vested in the husband, unless his marital rights are prevented from attaching by a settlement. As against his creditors, the settlement, if not recorded, will not prevent his marital rights from attaching. But the deed, as against himself, is effectual, and conveys the property. The conveyance here was from the wife : 1st. To the use of husband and wife during life; 2d. To the use of the survivor for life; and 3d. To the use of the issue of the marriage. The deed was binding on both husband and wife, and as to them, they must take under it. If the deed were void as to the creditors of Mrs. Gist, the result would be, that the property would be in the same condition as if no deed had been executed, and then the marital rights of the husband would attach and make it his, leaving no estate to the wife whatever. But, as there are no creditors of the husband contesting the deed, it follows, that at his death, it was good and valid in law", and the property passed under it, to the uses appointed by it. Mrs. Gist, therefore, takes, under it, all the estate that she can have in the property. Her creditors cannot, have any greater benefit from the deed than she takes under it. If she had a legal estate in the property, independent of the deed, then, indeed, her creditors might claim, that the deed, diminishing that legal estate, would be void as to them. But as, at the death of her husband, she could have *no*other estate than that-which the settlement conferred on her, it follows that they could not have the benefit of a greater estate than that to which she was legally entitled.

2. I differ from the Chancellor,- in his conclusion on the second ground, both as to the liability of the life estate of Mrs. Gist to be sold under execution; and, if it was not liable to the legal remedy, as to the power of the Court of Equity to make it available to the creditor for the payment of his debt. It is true that the Statute of Uses applies altogether to trusts in land, and that makes one distinction between trusts of real and personal estate. In the former, if the trust is not executory, or *216if it is not necessary, to preserve the trust, that the legal estate should remain in the trustee, the Statute executes the trust so soon 'as the deed is executed, and the legal estate vests in the *cestui que use.*In personal estate, the legal estate remains in the trustee, until he executes the trust by delivering possession to one capable of holding in himself or herself a legal estate in the property, to the extent of the interest intended by the deed to be conferred. If the estate is to the use of a married woman, the legal estate remains in the trustee during her coverture, for 'she is incapable, *of herself,*to hold a legal estate in personalty in possession, which would not vest in her husband. An estate to the joint use of husband and wife, during life, may, in order to preserve the trust, not be executed by the delivery of the possession to the husband. But, after a feme is descovert, the reason no longer exists why the trust should not be regarded as executed to the extent of the estate intended to be conferred on her. If the deed gives her the property for life, her possession of it, by the consent of the trustee, vests in her a *legal estate*for life. She could sue for, and recover the property from a stranger, in an action of trover. She is entitled to the possession during life, and this right of possession is a legal estate in personal property. If the words of the deed showed that she was not entitled to the possession of the property itself, but was to receive the profits, then she would have no legal estate. I have looked into the deed, and find that there is no such provision — the property is conveyed “ for the use of the said Sarah Brandford Porcher and States Gist, during their joint lives, and for the use of the survivor, during his or her life.” This trust, after Mr. Gist’s death, was executed by the possession of Mrs. Gist. In the case of *Jones*vs. *Cole, 2*Bail., 330, Mrs. Jones, the mother of the plaintiffs, being about to marry a second husband, conveyed to Samuel Hughens, in trust, for her separate use during life, and after her death, for the use of the plaintiffs, two slaves. She afterwards married the defendant, who had the possession of the slaves during his wife’s life, and after her death, refused to deliver possession to the plaintiffs. It was *217held that the plaintiffs could maintain trover for their recovery. In that case, it is said by the Judge (Johnson) who delivered the opinion, “ The right of possession, as' well as the right of property, accrued, therefore, to the plaintiffs, at the instant of. the death of the donor. According to the terms of the trust, no act was necessary, on the part of the trustee, to' invest the *cestui que trusts*with the right of property — not even a conveyance, for personal' estate passes without it.” If this be law, and that it is I have no doubt, how can it be pretended that ’the estate of Mrs. Gist, upon the death of her husband, accompanied by possession, was’not a legal estate* for life ? Could the trustee recover the property from her ? It is clear he cannot. Why ? Because she is entitled to the possession, during her life. If she has the absolute right of possession of personal property during her life, is not that a legal estate? Could her trustee maintain, either trespass or trover, for the property so in her possession, against a stranger ? I apprehend he could not, for he has not the right of possession. He might maintain case, for any injury done to his reversionary rights. If he can maintain neither of these legal actions, trespass or trover, for any injury done tp, or conversion -of the property, it would seem to be an irresistible conclusion that his legal estate, for the life of Mrs. Gist, is divested, and is in her. I hence conclude that -the property is liable to execution and sale, to the extent of Mrs. Gist’s interest in it.

But if her estate was only an Equity, and not liable to execution, I think in this Court it might be made available to the creditor in payment of his debts. In *McDermutt*vs. Strong, 4 Johns. Ch. 687, and in *Hadden*vs. Spader, 20 Johns. R. 554, it was held that trust property, not liable to an execution at law, might be subjected to its payment in Equity. In 4 Johns. Ch. 690, Chancellor Kent says: “ In *Bayard*vs. Hoffman, the cases were examined touching the power of this Court to enable a creditor to reach trust property beyond the reach of an execution at law; and I concluded the Court had, and ought to have this power. But this case stands on stronger ground than if it *218rested merely on the general jurisdiction of this Court upon residuary trust interests in chattels, for the plaintiffs come in the character of *execution creditors,*and have thereby acquired by means of their executions at law, what this Court regards as a legal preference or lien on the property so placed in trust.” In the principle of these cases I fully concur, and to their fullest extent I should be willing to give execution creditors the aid of this Court to reach property held in trust for the use of their debtors. It is a good and wise policy to protect, as far as we can legally do so, the rights of creditors.' Their property is applied often to the actual support of a debtor, who is wallowing in apparent affluence; and if, after having, perhaps almost consumed the entire means of the creditor, he or she was permitted to turn round and say: true I have an abundance with which I could, if I would, pay your debt, but my estate is not a legal one, it is a mere equity, and Equity will not permit it to be sold to pay you; — such a technical objection, would better subserve the purposes of injustice and fraud, than those of right, equity' and good conscience.

The Court should, in giving its aid against a trust property, take sufficient precaution to guard any ulterior rights of others, than the debtor, in the property, against public injury or loss. As the rights of all- parties in interest in this case are now before the Court, it is nefcessary to make such an order as will give the defendant, Hurtz, the full benefit of his rights as an execution creditor, and, at the same time, preserve the rights in remainder of the children of Mr. and Mrs. Gist.

It is, therefore, ordered and decreed, that the decree, of Chancellor DeSaussure be' modified according to the principles contained in this opinion: that it be referred to the Commissioner to ascertain and report the amount of the debt, interest and costs, due on the judgment of the defendant, Hurtz; and tha,t if the same be nofpaid, upon the confirmation of his report, that he do advertise and sell so many of the slaves, included in the said marriage settlement, for the life of Mrs. Gist, as may be necessary to pay the same, and that he do take bonds and *219good ■ personal security from the purchasers, not *to'*abuse the said slaves, nor to sell, alien, or carry beyond the'jurisdiction of •this Court, any of -them ; and at the death of Mrs. Gist, to deliver the same, if alive, with their increase, if any, to the complainant, for the use of the children of Mr. and Mrs. Gist; in all other respects the decree is affirmed.

JohnsoN and Harper, JJ., concurred.

*Decree modified.*

Note. This case, upon the principal point decided, is generally considered as overruled by the principles recognized by the Court of Errors in the cases of *Rice vs. Burnett,*and *Ioor*vs. *Hodges,*Sp. Eq. 579, 593; and, so far as the argument of his Honour Judge O’Neall, goes to show, that the life-tenant, Mrs. Gist, took, upon the death of her husband, a legal estate, which was liable to levy and sale under execution, this is correct. But it is apprehended, that the judgment of the Court — the *ideo eonsideratum est*— is not inconsistent with the principles of *Rice*vs. *Burnett,*and *Ioor*vs. *Hodges.*The Judge here discusses the question as to the power of the Court to subject equitable estates to the claims of the creditors of. the *cestui que tmist;*concludes that it has the power; and the judgment of the Court seems to proceed upon the idea that the estate of Mrs. Gist was an equitable one; for it .orders the sale to be made by the Commissioner, and directs him to take bonds from the purchasers ibr the forthcoming of the property at the termination of the life estate. The case of *Pringle*vs. *Allen,*1 Hill Ch. 135, cannot, however, be reconciled with *Rice*vs. *Burnett,*and *loor*vs. *Hodges,*and must, therefore, be considered as overruled. The judgment in that case proceeds upon the ground, that the marital rights of the husband of the life-tenant attached upon her estate; and if her es.tate had been equitable, it ■yvould not have attached. R.