[Prfe-ent, Chancellors Rtfteedge, Mabsiiali, and James.]

JUNE, 1804.

#### Adam Tunno and others, Assignees of M’Farlane, and Player, bankrupts, *vs.*Lewis Trezevant, George Cross, jun. and others, Trustees to the Marriage Settlement of Joshua Player and Charlotte his Wife.

A. maíces a settlement before marriage, including-bis wifes fortune, and all his private property. The settlement was dictated by her uncle and guardian, who would not otherwise consent to the marriage, and who was ignorant of the insolvency of A. at the time. The creditors of the copartnership filed a bill to set aside the settlement as it respected his property as fraudulent and void against prior.creditors. There was clearly no actual fraud, arid the court íéfüsed to set aside tile settlement.

THE bill states that M’Farlane & Player, at the time they were declared bankrupts, were indebted to complainants and others in large sums of money. That the property ofM’Farlane & Player will notpay twoand sixpence in the pound, they haying surrendered respectively, very inconsiderable funds. That the said Joshua Player was possessed of a large estate derived from his father; and being so indebted and so possessed' he intermarried with Miss Charlotte E. Thomson; and previous to his intermarriage, executed a certain deed of settlement* on the 31st Dec. 1801, in consideration of his intended marriage, and in consideration of a certain settlement of his wife’s property then in possession, and such as might afterwards come to her, whereby he conveyed to the defendants in trust, all his lands and negroes for the use of himself and wife for life, and if she died first, without issue living at her death, then to his sole use; but if she left issue alive, then to him for life, and remainder to the children. If the children died in his life time, then to his sole use for ever.— In the event of his dying before her, the same limitations are made in her favor; except that if she should die, leaving no issue alive, the property is to revert to his heirs.-*265*And the*said Joshua Player further covenanted in and by the said settlement, that as soon as the said Charlotte E. Thomson’s share of her father’s estate was ascertained, he would convey the same to the said defendants, in trust for her separate use during their joint lives, not subject to his debts *;*and in the event of her dying first, without issue living, then in trust for the use of the said Joshua, his heirs, executors and *assigns;*but if she left issue, then to him for life, remainder to such issue. And in case the said Joshua should die before the said Charlotte, then to her for life, and remainder to her issue *;*in default of such issue to his right heirs.

The bill prays that the said marriage settlement be postponed to the-prior claims of the creditors, as far as regards the property of the said Player, thereby conveyed.

The answer of the defendants admits the settlement j that it was made on the 31st December, 1801, and that M’Farlane & Player were declared bankrupts on the 24th July, 1802 5 and the defendant Lewis Trezevant states the following facts in regard to the said settlement; that in May, 1801, the said Player applied to this defendant as guardian and uncle of the said Charlotte E. Thomson, (whose father was dead) to obtain his consent to the marriage of the said Player, with his niece; that this defendant consented thereto, but required that a proper settlement of her property should be made on her *;*and further, as mercantile men were liable .to sudden misfortunes and failures, which often stripped them of ■ their whole property *;*he required that the said Player should settle so much of his own property on her, and the issue of the marriage, as together with her own property, would secure her a competence incase he should meet with accidents, and become embarrassed. The said Player replied that a settlement •was unnecessary, as his father’s will devising to him his property, settled it upon him, and any family he might have. That this defendant expressing a doubt, whether the will might not be incorrectly worded, and not sufficient to effect this object, asked for a copy thereof,'which *266the said Player promised to give ; at the same time saying, that if upon examination, the will should turn out to be insufficiently expressed to effect this object, he was willing *to*make the settlement required, as he knew his father’s intention to be that the property should be so settled. That this defendant soon after examined the said will, and being of opinion that it would not secure with certainty this property to the family of the said Player, communicated to him that opinion, and required the settlement to *b¿*made. That the said Player then agreed to- settle the said property upon such terms and trusts as this defendant might think proper and liberal. That this defendant then consented to his marriage with his niece, between whom and the said Player, an engagement immediately took place, although the marriage was not solemnized until some time after. And this defendant .verily believes that the said marriage never would have taken place without his consent, which he certainly would not have given, unless this settlement had ‘ been made. This defendant solemnly avers, that neither at the time of the engagement, nor at the time of the marriage, had he any reason to sus-» pect the solvency of M’Farlane and Player. That being but little acquainted with the circumstances of mercantile men in Charleston, he made some enquiries respecting the situation of M’Farlane & Player, at the time the latter was paying his addresses to his niece, and learnt that their credit was good at the custom house, and at the banks. Defendant therefore trusts that he will be acquitted of having had any improper design to procure the said settlement to be made for the purpose of placing the said property out of the reach of the creditors of M’Farlane 8c Playeiv

This defendant avers that the settlement, and the terms and limitations therein contained, were proposed by himself, and not by the said Player. That the settlement was made in consideration of marriage, and to provide for the issue thereof, and also in consideration of the property and estate to which the said Charlotte was entitled.

*267These defendants contend, that as to the solvency of M’Farlane & Player, at the time of the 'agreement above named, the debts due in May, 1801, and not the amount <Jue in December following, ought to be the sum taken into the calculation, because the verbal contract to make the said settlement, was made in May, at which time M’Far-lane & Player were worth more than they owed by several thousand pounds sterling j but that even in December, they might reasonably have considered themselves solvent.

These defendants deny that M’Farlane & Player were indebted in the sum of $137,636, 34 cents, in the month of December as stated; and they aver that a large part of the debts due in December, were paid before the bankruptcy took place.

That the amount of debts proved against M’Farlane Player, before the commissioners of bankruptcy, is only 074,318, 5 cts. and in that amount, several creditors have proved their debts without giving credit for the proper discounts ; which if done, would reduce the amount to 064,780, 30 cts. ; and that from this sum ought tobe de7 ducted, the debt due by G. K, White & Co. which reduces the amopnt to 046,050, 25 cts. That the debts and' effects assigned by M’Farlane & Co. as bankrupts, is 091, 281 82, cts.

These defendants carmot.admit that M’Farlane & Play7 er are guarantees for Cummings & Co. as stated, and pray to be dismissed with costs.

The cause came to a hearing, and after argument, Chancellor Rutledge delivered the decree pf the court as follows:

This bill is brought by the assignees of M’Farlane & Player, against the defendants, trustees in a settlement made by Player, previous to his marriage, to set aside the settlement (so far as it respects his own private estate) in favor of the prior claims and rights of complainant and other creditors of M’Farlane & Player, the funds of the copartnership being wholly inadequate to the payment of *268tbeir debts, and because the said M’Farlane & Player were insolvent at the time of the settlement. The defendant Mr. Trezevant, who was the principal agent in the transaction, by his answer, among other matters, states that his neice referred Mr. Player to him, for his approbation, before she would give him an answer. That having no personal objection to Mr. Player, defendant pro-* posed the settlement, which was afterwards made for the reasons set forth in his answer. That having inquired respecting the situation of M’F. & Player, he understood their credit was good at the banks and custom *house;*that neither at the time of his engagement, nor even at the time of the marriage, had he any reason to suspect the solvency of M’F. & Player ; that he verily believes the marriage would not have taken place without his consent, and he would not have' consented to it, if the settlement had not been made. That it was not only in consideration of marriage, and to provide for the maintenance and support of his ñeice, and for the issue of the marriage, but also in consideration of the property to which she was entitled. That her property is settled upon terms much more favourable for Mr. Player than his is in her favour. That it was the intention of Player’s father, as expressed in his will, to secure the property he devised to his son, (and which is settled) in such a manner as to place it out of the reach of creditors *;*and therefore no more is done by the settlement than was intended by the father; and further that the lands settled are charged by the will with legacies, to the amount of 600/. It was admitted that this transaction was conducted with the utmost fairness, and was totally free from the smallest imputation of fraud. It was nevertheless contended by complainants counsel, that although there was no intention of fraud, yet if the deed was supported, it would operate as a legal fraud with respect to the creditors of M’F. & P. the copartnership being largely indebted at the time, and if not then really insolvent, has since proved to be so; that therefore Player had no right to make the settlement, in as much as it *269breaks in upon the legal rights of creditors. For defendant it was insisted that M’F. & P. were solvent at the time of the contract, and no subsequent misfortunes ought to operate so as to invalidate *it;*that even if they were insolvent, and Player knew it, that would not effect the case, defendant not having notice of it, and they being purchasers for a *bona fide*and valuable consideration without notice. That the creditors trusted to the fund of M’F. & P. and must be paid out of them. Defendants were in nature of private creditors, and their claim was preferable to the copartnership creditors, and must be first satisfied out of the private estate. This case is confessedly stripped of every symptom of *fraud;*it does not therefore come within the statute of 13 Eliz. As the marriage would never probably have taken place, if it had been contemplated that the legality or validity of the settlement would have been at all controverted, the only question in the case is whether the settlement under all the circumstances of it, is made upon such a consideration as to prevail against creditors. Marriage is not only a *bona fide*and valuable consideration, but the very highest consideration in law; this court will therefore always support marriage settlements, if there is no particular evidence of fraud made out, shewing an intention to deceive or defraud creditors. In the case before us, referring to the answer of the defendant, Mr. Trezevant, he positively swears that M’F. & P. appeared to be in good circumstances; their credit was good, he was induced to give his consent to the marriage, (without which it would not have taken place) under the strongest conviction of the solvency ofP. and that he was competent to make the settlement which was made.

Whether the house of M’F. & P. were or were not solvent, was a question defendant could not decide, he could only judge from circumstances, and he had no reason, as he has sworn, to suspect that they were insolvent. Besides the property proposed by Player, to be settled, was his own private estate, devised to him by his father, sub*270sequent to his engaging in trade, and therefore could not have been counted upon by the copartnership creditors to satisfy their demands. Independant of that, defendant on referring to the fathers will, saw that his intention was to secure the property from his sons creditors, for the benefit of his grand children ; and defendant therefore very naturally concluded that such intention would be carried into effect by this court, if applied to for that purpose. The doctrine of setting aside voluntary conveyances and settlements made by persons indebted at the time, is laid down we think on too broad a scale ; for if that was held to be the law, scarce any settlements could be supported in this country, there being few or no per.sons who are not more or less in debt; and if it was to be extended to the actual solvency of the party making the settlement, it might be attended with great difficulty ; for at that rate a man previous to making a settlement, must know to a cent what he owed, and have his estate appraised to ascertain the precise value of it. The situation of mercantile men would be still harder, for they might be worth thousands to day beyond what they were indebted, and a few days hence by unforeseen losses in trade and bankruptcies of their debtors, they might be reduced to beggary. In the application of funds for payment *of*debts, the partnership effects are always appropriated to paying partnership debts, and the private estate to pay the private debts of the respective *partners;*the partnership creditors have no specific lien on the private estate of the individual partners. This is a private contract entered into by Player with the trustees, when he was generally believed to be in good circumstances, the consider ration of which is of the highest nature, and not a scintilla of fraud in it. The private fortunes of Player and his intended wife, are mutually pledged as well for the purpose of securing a suitable maintenance and support for them, as for the providing for the issue of the marriage-; and from the evidence offered, it appears the income is not, or is but barely sufficient for that purpose; and when the legacies *271which are charged on the land are paid, which they must be, the income will be still less.

Prixgle for complainants.

Parker and Ligrtwood for defendants.

Upon the whole, the settlement seems to be both fair F . . . . . . and just; we will not weigh it too *nicely;*it is a *bona fide*discharge of amoral duty, and ought to be supported.

Bill must be dismissed with costs.