#### *E. J. Higgenbottom*vs. *Wm. H. Peyton. Wm. H. Thomson, Ordinary,*vs. *Wm. H. Peyton.*

By marriage settlement, made in 1826, and not recorded until eight months after its execution, the wife’s share in her father’s estate was conveyed to a trustee for the use of the wife and the heirs of her body: proceedings were then pending in the Circuit Court of the TJhited States in which the father’s estate was interested: in 1832, his real estate was sold by the Marshal and bond taken for the purchase money: The XT. S. Court ordered the wife’s share to be paid to the husband in right of his wife; this was not done, and, in 1850, after the death of the husband, the XJ. S. Court ordered the bond, which remained unpaid, to be transferred to the State Court of Equity for B.arnwell, subject to its *decree:*— Held, that the marital rights of the husband had not attached on the wife’s share, and that she was entitled to it, as against the creditors of the husband, under the provisions of the marriage settlement.

At the sale by the Marshal of the father’s personal estate, one S. at the request of husband and wife, bid off a number of slaves as trustee for the wife, and gave his bond for the purchase money: this bond was afterwards settled by giving credit as for money to which the wife was entitled, as her share of her father’s estate: S. permitted the slaves to go into the possession of the husband, who kept possession of them, using them as his own till his *death:*— Held, that, although the marriage settlement was void as against creditors, the parol trust created by the purchase by S. was valid ; and that the marital rights of the husband had not, under tire circumstances, attached on the slaves: per Harper, Ch. in *Peyton*vs. *Enecks,*in note.

A trust in personal property may be created by parol; and when such a trust is properly created in favor of a *feme covert,*it is not regarded as being executed, so as to be liable to creditors, by the mere circumstance of the property going into the possession of the husband: per Harper, Ch. in *Peyton*vs. *Enecks,*in note.

*Before*Dunkin, Ch. *at Barnwell, February,*1851.

This case came before the Court on exceptions, by Lucy J. Enecks, one of the defendants, to the Commissioner’s report.

Dunkin, Ch. The exceptions of Lucy J. Enecks arise out of this state of facts. She was a daughter of Elijah Gillett. On her marriage with George W. Collins, in 1826, he executed an informal settlement of all that part of lands and tenements, goods and chattels, rights and credits, bequeathed to and left her by her deceased father and mother. This transfer was made to James Higgenbottom, who was named trustee for the said Lucy, *399and the lawful heirs of her body. The trusts were “for her only proper use, benefit and behoof, and the lawful heirs of her body.” Proceedings were, at that time, pending in the Circuit Court of the United States, in which the estate of Elijah Gillett was interested. In 1832, his real and personal estate, in the hands of the executor, was sold. The real estate was sold by the Marshal, and purchased by General Erwin, who gave his bond for the purchase money, about $8,270. The complainant’s bill, in that suit, was dismissed; but the Court, without being called on to make distribution, proceeded, by its de-cretal order — which Chancellor Harper afterwards styled “ unusual and peculiar” — to direct that one-fourth of the fund should be paid to J. Higgenbottom, in right of his wife, Julia; one-fourth to George W. Collins, in right of his wife, Lucy; one-fourth to J. S. Powell, in right of his wife, Lavinia; and the remaining fourth part to Aaron Gillett. It does not appear that this order was made at the instance of Collins, or that he ever took any steps to avail himself of it. If the money had been received by him, I suppose it could hardly be questioned that he would be construed a trustee for his wife, under the settlement of 1826.

But Collins departed this life several years since, never having received this money, and the bond of General Erwin still remained unpaid. By a decretal order of the Circuit Court of the United States, made on the 25th November, 1850, the bond of General Erwin was ordered to be delivered by the Clerk of the United States Court, to the Commissioner in Equity for Barnwell district, to be held by him, subject to the decree of the State Court of Equity. It will be perceived that the only question is, whether the marital rights of George W. Collins attached — whether he held the fund absolutely. It is directed to be paid to him “ in right of his wife,” and I think, it stronger than the case of *Peyton*vs. *Eneclcs,*MS. 1845, Barnwell, (a) in which Chancellor Harper sustained the

*400■wife’s rights under this settlement. It is ordered that the second exception of Lucy J. Enecks he sustained.

The creditors of G. W. Collins appealed, on the following grounds, viz:

1. Because the marital rights of G. W. Collins had attached to his share of the fund in the Federal Court.

2. Because the said exception contravenes the decision of Chancellor Harper, who expressly decided that the marriage articles referred to were null and void as against creditors.

3. Because the said exception contravenes the decisions of *401this Court, not only on general principles, but in relation to this very claim, set up by Mrs. Enecks.

4. Because the said decision is contrary to evidence, law and equity.

Bellinger, for appellants.

*Patterson, Graham,*contra.

(a)

 The following is the decree of Chancellor Harper, in *Peyton,*administrator of Collins, vs. *Enecks.*

Harper, Ch. On the 13th September, 1826, George W. Collins, in contemplation of *400his intended marriage with the defendant, then Lucy Gillett, conveyed to a trustee all the estate of the intended wife, in trust for her “ only proper use, benefit and behoof.” The only property she was then entitled to was an undivided share of her father’s estate, of whom she was a residuary legatee. The estate was then involved in litigation, in the Federal Court. This deed was not recorded till the 30th May, 1827, eight months after its execution.

At the sales of the estate of Elijah Gillett, the father of the defendant, Lucy, one Stephen Smith, at the request of Collins and wife, bid off a certain number of slaves, as trustee for Mrs. Collins, and gave his own bond for the purchase money. This bond, if I understand correctly, was afterwards settled, by giving credit as for money, to which Mrs. Collins was entitled, as her share of her father’s estate. The trustee, Smith, permitted the slaves to go into possession of George W. Collins, who kept possession of them, using them as his own, till his death, in 1836. At the time of his death, Collins was largely indebted, by judgment and otherwise, and some ofhis creditors are proceeding to enforce their claims by action at law, against the complainant, his administrator.

After the death of Collins, by an arrangement between his widow and the administrator, it was agreed that the property, in his possession at the time of death, including the slaves claimed by the wife, should be sold, she reserving her claim to the proceeds, and the property was sold accordingly. The objects of the bill are, that the creditors may be restrained from proceeding at law — that an account may be taken of the estate of Collins, and that the rights of the defendant, Mrs. Enecks, in the proceeds of the property, sold by the administrator, may be declared. I take the marriage contract to be void, for want of recording, and the case must be decided as if it had never existed. The question, then, is, whether the husband, Collins, during his lifetime, reduced into his possession his wife’s share of her father’s personal estate, so that his marital rights attached upon it. By his purchase at the sale, I suppose the legal title to the slaves vested in Smith, as trustee for Mrs. Collins. *A*trust of personal property may be created by parol; and, if the trustee had remained in possession of the slaves, hiring them out, and paying over the proceeds of their labor to the wife, I do not perceive how any question could have arisen. The case of *Perryclear*vs. *Jacobs,*(2 Hill’s Ch. 504,) is very similar to the present, and, for the most part, must govern it. In that case, it was held that an assignment might be made by pa-rol of an undivided share of an estate, to which the wife was entitled, to a trustee, for the separate use of the wife, and that, reduced intp the trustee’s possession, the property remained subject to the wife’s equity, as in the hands of the executor. There was no question of recording a parol agreement; and the property never having come into the husband’s possession, his creditors did not trust him on the faith of it, and had no right to look to it. If the trustee, Smith, purchased for the wife, and by the consent of the husband, the money in the hands of the executor, to which he *401might otherwise have been entitled, in right of his wife, was applied to pay for it, it forms a similar case.

In that case, however, the property was not permitted to go into the possession of the husband; and as, in this case, it was in his possession, and he may have gained credit on the appearance of property, it would seem to come within the mischiefs of the recording Acts. But there is great difficulty in applying them. Suppose the trustee had purchased of any other person, arid the executor, with the husband’s assent, had paid the money, should I be authorized to say that this transfer to the trustee must be in writing 1 — that it is a marriage contract, or settlement, and must be recorded *%*If not, and the property were permitted to go into the hands of the husband, subject to the trust, the trust would be good as against him; and, if it would be void as against creditors, it would be on the ground of fraud; and, apart from the recording Acts, this must mean actual intentional fraud. But it has nowhere been held that the mere circumstance of giving a man the appearance of property, by putting it into his possession, of itself constitutes such fraud. I perceive no evidence of any actual fraudulent intention. The deed, securing the estate of the wife, was not kept secret. It was recorded, long before the property came into the hands of the husband; and, if creditors, afterwards, trusted him on the faith of it, they had the same means of notice as if the instrument had been recorded in due time: and this would have been valid without a schedule. It is said, in *Perryclear*vs. Jacobs, that, if the trustee “ should permit chattels to go into the hands of the husband, this might, perhaps, be construed a surrender of the trust, and the marital rights attach upon them, so as to render them liable to creditors.” But this was before the ltea *402decisions that, when a trust is properly created in favor of a *feme covert,*it is not regarded as being executed, so as to be liable to creditors, by the mere circumstance of the property going into the possession of the husband. Those are cases of marriage settlement duly recorded. But, if this trust was duly created, if there was no necessity for registration, and if there was no actual fraud, it must come within die same rule, The trust must be held not to be executed, and not liable to creditors, unless by the intervention of this Court. It is usual to direct a reference as to the terms of the settlement. But the settlement, now to be made, is between the present husband and wife, as of the wife’s equity, in the hands of the complainant: and I undestand it to be agreed that it shall be to the sole and separate use of the wife.

It is, therefore, ordered and decreed, that it be referred to the Commissioner, to inquire and report a proper person to be appointed the trustee of the defendant, Lucy J. Enecks, and whether such trustee ought to give any, and what security, for the faithful discharge of his trust; that the Commissioner take an account of the sales of the property sold as the estate of George W. Collins, and inquire and report what portion of the proceeds of the said sale were derived from the trust property of the defendant, Mrs. Enecks; and that, upon a trustee being appointed, the Commissioner transfer and assign the amount of such portion of such proceeds to such trustee, in trust, to the sole and separate use of the wife for life: to the use of husband for life, if he shall survive his wife; at the death of the survivor, to the issue of the said wife then living; and, if no issue of the wife, to the survivor absolutely.

D unkin, Ch.

delivered the opinion of the Court.

In the proceedings in the Federal Court, the validity or eifect of this marriage contract was not involved in the issue. Nor were the proper parties before the Court for that purpose. So, in *Gillett*vs. *Powell,*(Sp. Eq. 142,)Ch ancellor Haiiper. expressly declares that, in the case then before the Court, no question was made as to the validity of the marriage settlement of George W. Collins, and that nothing is concluded respecting it in the judgment then to be pronounced. In truth, the Court, in that case, considered only the eifect of the decree in relation to the rights of J. S. Powell, who had survived his wife, Lavinia, whose marital rights were embarrassed by no marriage settlement, and who insisted on the benefit of the Federal decree. Collins never interposed any claim, departed this life in 1836, *402his ■widow, Lucy J. surviving him; and, in 1850, the fund, in the Federal Court, still remaining *a chose in*action, was, by the order of that Court, transferred to the Court of Chancery, for Barnwell district, “ subject to the decree of the State Court of Equity.”

In the circuit decree I have said, that, if Collins had actually received the money, he would have taken it affected with the trusts of the ante-nuptial settlement executed by himself, and, that receiving and holding in a fiduciary relation, his marital right would not attach. I have heard nothing to remove that judgment. But suppose he had not left this to implication or judicial inference, but had given an order on the registry of the Federal Court, or on the obligee of the bond, to pay the money to Higgenbottom, the trustee of the settlement, to be held by him subject to the trusts thereof, as Chancellor Habper has said in *Peyton*vs. Enecks, on what principle could the creditors of Collins complain *1*The lands sold were his wife’s inheritance. The decree directed the proceeds to be paid to him in right of his wife. By the settlement of 1826, Collins had transferred all the right to these lands to Higgenbottom, the trustee, and the settlement was recorded in eight months thereafter. He had never reduced the fund into his possesion, and was bound not to *403reduce it into his possession, but to do every thing in his power to secure the efficiency of the trust, and he had done so. Instead of giving an order to the trustee for the fund, Collins merely refrained from doing any act inconsistent with his covenant, and left the bond in the custody of the Federal Court, who have transferred the administration of the fund to the State tribunal.

The Court are all of opinion that the rights of Mrs. Enecks are not precluded by any judgment heretofore pronounced, and that, on the general principles of this Court, she is entitled to the fund under the provisions of the marriage settlement. The decree of the circuit court is affirmed and the appeal dismissed.

Johnston, Dargan and WaRdlaw, CC. concurred.

*Appeal dismissed.*