[Present, Chancellors Rutiebge, Mabshaje and James.]

#### Mrs. Susannah Carnes, and others, *vs.*William L. Smith, Executor of Barnard Elliott.

A person being about to marry a. lady entitled to a large fortune, agrees, in consideration of her fortune, to charge his whole estate with a certain sum, as a settlement on his" wife and children. He receives her fortune, and dies insolvent — Afterwards an additional part-of his wife’s fortune comes to his executors hands: It *300shall be first applied to make up. the sum charged on his estate, f°r bis wife.

MAY, 1805.

XHE bill sets forth that complainant is the daughter of Benjamin Smith; that she intermarried some time prior to the year 1778, with the late Col, Barnard Elliott, and was at the time of her marriage entided to a considerable sum of money from the estate of her said father. That being so entitled and in consideration thereof the said Barnard Elliott made a settlement previous to the marriage, by which he charged his whole estate for securing the sum of 84,000/. old currency, which was stated to be her proportion of her father’s estate.

That the said B. Elliott died in the month of October, 1778, and by reason of his debts and other causes, complainant hath never received the full amount of the said settlement, the deficiency thereon amounting as she believes to upwards of 6Q0/. sterling. That complainant is informed and believes that a part of the estate of her said father, consisting of bonds and notes and real estate which never came into the possession of her deceased husband in his lifetime, is now about to be divided among the de-visees and legatees of said Benjamin Smith.

Complainant conceiving herself entitled to her distriT’ putive abare thereof, has made a demand for the same, of Wm. Lough ton Smith, the only acting executor of the said Barnard Elliott who has received and retains the same as executor aforesaid, under the abovementioned marriage settlement, alleging that the same ought to be considered as assets in the hands of the executor of the estate of the said Barnard Elliott, fqr the payment of the debts due thereout.

The bill prays that the said defendant, Wm. Loughton Smith, may be decreed to pay over to the complainant the said sum of 600/. sterling, the deficiency of her said settlement, or such other sum or sums of money as may be due her thereon, or as her distributive share of the estate of her father as aforesaid.

The answer of the defendant admitted the facts charged *301in the complainants bill, as to the marriage, and as to the settlement. But whether the said complainant has received the full amount of her marriage settlement, he of his own knowledge knows not, but that he has heard and thinks it very probable that she has not received the full amount thereof. Admits that there still remains to be di - vided among the legatées and devisees of the late Benjamin Smith, a small residuary fund, which on account of its doubtful state, was not comprized in a former division of the said Benjamin Smith’s estate, which was made in the year 1785 5 one distributive share of which said fund will accrue either to the said complainant in her own right, or to the estate of the said B. Elliott, as this court shall see fit to decree; and which hath not been hitherto paid to the said complainant, because a doubt has existed and still exists, whether the said marriage settlement made by the said B. Elliott with the said complainant did not vest in the exec utors of the said B. Elliott, all right and title to any interest which the said complainant might have had at the time of her marriage, or which might afterwards accrue to her from any undivided surplus fund, of the estate of the said Benjamin Smith, to be- applied by the said executors as assets to the discharge of the debts due by the estate of the said B. Elliott. The answer saith that the said fund now to be distributed as aforesaid, arises from a surplus of certain bonds which were retained for the payment of legacies, and also from other dubious bonds the value of which has been recently ascertained $ .and that it is yet uncertain what will be the precise amount of the said fund, inasmuch as some of the bonds are still of a doubtful nature, but whatever may be the said amount, defendant is ready to pay the said complainant a distributive share thereof, as this honorable court may direct.

It was agreed that Mrs, Carnes had not received from the estate of her first husband, Col. Barnard Elliott, the amount of the sum charged upon his estate by the marriage *302articles; and that the estate was not sufficient to pay all its private’debts, and the balance due to .Mrs. Carnes, which was now under discussion was an unexpected surplus of the estate of Mrs. Carnes’ father, which was to be distributed among his children. Mrs. Carnes claims her proportion of this fund, as property not paid over to her husband during the coverture, or to make good the deficiency of the sum secured by the marriage articles, and charged on the whole estate of Col. B. Elliott, and she insisted on a priority over his other creditors.

The executor of Col. Barnard Elliott submitted, on the part of the creditors, whether the late Col. B. Elliott did not stand on the footing of a purchaser- of his wife’s whole fortune derived from her father’s estate; and if so, that his estate was entitled to the benefit of .the sum now in question, and it would be distributable among the creditors of Col; Elliott’s estate proportionably.

Mr. Gailláed argued for the complainant,

that the property Mrs. Carnes carried in marriage to Col. Elliott, was equivalent to the property settled on her; avid this was charged on his whole estate; besides she has given up her dower as part of the price of the settlement, and the court would have compelled a settlement to the amount of her fortune. The whole estate is bound to make *good the*settlement in preference to other creditors. 1 Atk. 440. I P. Wms. 429. P. Wins. 268. The settlement was made in her minority, and she was not bound by it. But she has made her election to abide by the jointure, provided it be effectually secured to her. 1 Atk. 439.

The sum now in question was a surplus of her father’s estate, never reduced to possession by the husband, and must survive to the wife. 2Vern. 68, Lister v. Lister. Amb. 692, Solway v. Solway. Powell on Cont. *47,*8.

Mr. Desaussure and Mr. Parker contended thatthe husband became in consideration of the settlement, a purchaser of all his wife’s fortune of every kind, & whenever it was collected. Thatthe fund in question must therefore go into'Col. Elliott’s estate : when there it was to be dis*303posed of by the executors according to the rights of parties. .That the covenant in the marriage articles charging the estate of Col. Elliott with the amount settled, had not been construed to be a specific lien on his estate, giving a preference over other creditors. In the discussion formerly before the court, she was placed on an equal footing with other creditors, and that was all that* Could be doné now.

Chancellor Rutledge

afterwards delivered the decree of the court,

By the marriage articles of Mr. Elliott, it is stated that the portion he was to receive with his wife was 84,000/. currency, and he thereby charges his whole estate with the securing that sum to her, and the issue of the marriage. It appears from a settlement of his account with the executors of Mr. Smith, the complainant’s father, that Mr. Elliott did not receive the amount of his wife’s fortune : a small portion of Mr. Smith’s estate remains to be distributed among his children. Complainants have not received from Mr. Elliott’s estate near the amount of the settlement, and there are other creditors yet unsatisfied. Mr. Elliott’s estate is insolvent. A doubt arises how the 'money of Smith’s estate is to be applied, whether to complainants exclusively, or to be divided among them and the other creditors generally, in average and proportion ? The court are of opinion that Mr. Elliott, by the settlement, having charged his whole estate with securing his intended wife’s fortune to her and her issue, he would, if alive, be undoubtedly entitled to the money now in the hands of Mr. Smith’s executor, even if he had received the *84pool.*That as the complainants have not- received the- sum agreed to be settled, and his whole estate was charged with payment of it, the money in question ought to be applied towards the discharge of their demand in the first instance. Why the claims of the complainant were not fully satisfied in the former suit, does not appear ; but wc presume it was, because it was then thought *304that the estate was fully competent to satisfy the settlement, debts and legacies; or Mrs. Carnes would not have keen Pa^ ^er legacy*