#### Christopher Jenkins *and others, vs.*Sarah Clement *and*Charles D. Deas.

v2 *general, unqualified devise of lands, without any words of*in■» *heritance or perpetuity, will give afee.*

*Jl plantation was given to W. O. hy the will of his wife’s hr other, E. TV. deceased, and hy the same will other lands were devised to W. C. in trust to sell and divide the proceeds among the testator’s nephews and nieces, the complainants. Soon after the testator’s death, viz. on the 2d of March,*1801, *W. C. settled on his wife the plantation devised to hint, together with slaves which he had acquired hy his wife in marriage. It appeared that he had little or no other property, and had promised before marriage to settle his wife’s fortune. In January,*1802-, *TV. C. sold the lands devised to him in trust; but uever paid over the proceeds: lie remained- in good credit until*1805 *or*G, *when he became embarrassed, and died insolvent in*1820'. *Decreed, that the settlement was not valid as to the complainants, who were entitled to be satisfied their legacies out of the property settled.*

The bill was filed to obtain tbe construction of tbe court, on a devise in the will of Edward Wilkinson, deceased, tbe brother of the defendant Mrs. Clement, and to set aside a settlement made by her late husband, William Clement, in trust for her.

The will of Edward Wilkinson ivas as follows: — “in the name of god, amen. I Edward Wilkinson, of the Parish of St. Paul, being sick and weak of body, but of sound disposing mind and understanding, do make this my last will and testament. First, it is my will and desire that my just debts be paid out of my personal property. Secondly, I devise my plantation at Wilitown, called the Island River Swamp plantation, to my brother-in-law Wm. Clement. My plantation on S ami’s Island, 1 devise to my cousin Wm. Smith. My plantation on the main of Wilitown, called tbe Swamp Plantation, and also two tracts of land, one containing 750 acres, situated in Colleton county in the State of Georgia, another, (number of acres unknown) situated near Coosawhatchlc, I leave to be sold by my executors and executrix, to be hereafter named, on such terms or credit as they may think most conducive to the interest of those it may concern; and it is my will and pi casino. *73líiaí the monies arising ■'’rom the sales of the aioresaid three tracts of land be e juaLy divided, share and share alike, among my nephews and nieces, the issue of my sisters, who are now born or may happen to be boni four months from the date of this my will; it is also my will and desire that if any of my said nephews and nieces, either now born or to be born within the four months aforesaid, should die unmarried or without making a will, that in such case or cases, the portions of such so dying, arising out of -the sales of the three tracts of land aforesaid, shall be equally devided among the survivors. 1 will and devise the plantation on which Í usually reside at Toogoodoo, to my dearly beloved mother Susanpah Wilkinson, sen. to be disposed of at her death as she ma^ think proper.”

*“The*remainder of my horses and of all my other personal property, I bequeath to my dearly beloved mother Susannah Wilkinson, sen.”

“And I do hereby constitute and appoint my said dearly beloved mother Susannah Wilkinson sen. executrix, and my brother-in-law, Win. Clement and Thomas Whaley, executors of this my last will and testament.”

The bill charged that the devise of the plantation at Will-town to William Clement gave him but an estate for life.

It appeared that on the.second of March 1801, William Clement convgyed to the defendant Charles S. Deas the plantation devised to him by his brother-in-law, Edward Wilkinson, and twenty five slaves which he had received with his wife on marriage, in trust for his said wife, the other defendant. This conveyance was charged to be fraudulent.

At the time of making this conveyance, William Clement %yas not in debt; or but to a very trifling amount; and the evidence was that he remained in good credit until 1805 or 6, when he became involved ip his circumstances by becoming an accomodation indorser for one Peyton. ’

There was testimony that before his marriage, Clement had promised the lather and mother of his intended wife that he would settle her fortune upon her. A witness (Col. Cattle) testified that after Edward Wilkinson’s death, he, witness* “told *74Clement that he was sure Edward Wilkinson intended the property for his sister} that lie had not named Mrs. C. because he did' not wish to mention one sister to the exclusion of others} (he had objected to the marriage of two of his sisters-,) Clement Said he was sure of it, that he was flattered by the confidence; that he had all along promised Mrs. Wilkinson to make a settlement and would do so. lie could not have been in debt. Witness told him he might with honor make a settlement, as lie was entering into life.” The testimony of this witness was objected to, but admitted by the court.

In January 1802, William Clement sold the plantation on the main at Willtown, which had been devised by Edward Wilkinson to his executors in trust, to be sold for the benefit of bis nephews and nieces (who were the complainants) for *£*2,240.-hnd afterwards the land at Coosawhatchie.

In 1820, William Clement died.

Chancellor *Gaillard.*The bill has two principal objects; One to set aside a deed of Wm. Clement to the defendant, Mr. Deas, bearing date March 2, 1801, and recorded on the 18tk April, conveying to him in trust for Mrs. Sarah Clement, wife of the said Wm. Clement, negroes which came by her in marriage, and a plantation left to him, Clement, by Edward Wilkinson, Mrs. Clement’s brother. The other is to obtain the opinion of the court on the devise of the plantation to Mr. Clement, the complainants contending that he was entitled under it only to a life estate.

Soon after his coming- of age in the fall of *1799, Mr.*Clement intermarried with the defendant, Sarah Clement, and in the spring-of 1800, a division of personal property to which they were entitled was made between Edward Wilkinson, his sister, Mrs. Clement, and their mother, Mrs. Wilkinson. The share which fell to Mr. Clement, in right of his wife, is included in tlie deed to Mr. Deas, and also the plantation left, to Mr. Clement by his brother-in-law, Edward Wilkinson, by his will dated on the 10th of July, 1800. Mr. Clement was indebted at the time the settlement was made; there are judgments against him beginning in 1803, and others subsequent, and *75part of the debt, *‡*170 for which there is a judgment, existed prior to the settlement. There is some evidence of a verbal promise on the part of Mr. Clement, to settle on his wife the property he should get by her. I lay this aside; for a settlmenC made after marriage, though in pursuance of a parol agreement made before, is not valid against creditors. The devise of the Willtown plantation by Mr. Wilkinson is to Mr. Clement his. brother-in-law* Col. Cattel states that soon after Wilkinson’s-death, he told Clement he must know Wilkinson did not intend, the plantation for him, and that it was through delicacy he had not mentioned his wife, as he was not on speaking terms with his two other sisters, the marriage of one of whom he disliked,, and that he advised Clement to settle the property on his wife, as *he*could then do so honorably, as he did not not owe money. The settlement is called a voluntary one, and being made after .marriage must be so considered, notwithstanding the personal property all of it came by the wife, and there'is reason to believe the inducement to the devise of the Willtown lands to Clement, was his being the husband- of the' testator’s sister. *The*settlement on Mrs. Clement, though voluntary, was made under circumstances entitling it to favorable regard, unless i£ can be discovered that some fraud on his creditors was intended.

Clement was indebted at the time of making it, but the sum he owed, which fiom length- of time and' no demand made, may fairly be-presumed to be satisfied-, was too inconsiderable to afford reasonable evidence of a fraudulent intent, and it is a circumstance in favor of the fairness of the act, that Clement’s credit continued good a long time after, until 1805, when it began to decline, in consequence, Mr. O’Hara thinks, of his being obliged to take up notes he had endorsed for P eyton. I am of opinion that the settlement is fair and ought to be sustained.

The next question relates to the Willtown plantation. The devise of it is in these *words:*— “ I devise *my*plantation at Willtown, called the Island River Swamp Plantation, to my brother-in-law Wm. Clement.” The devise is unaccompanied by any words of inheritance or perpetuity. So is the devise *76
      *oí*tlie plantation órt Sian’s Island to his cousin Win. Smith; indeed there are no words of inheritance or perpetuity in any part óf the will. He left three tracts of land to be sold *by*his executors, and the monies arising from the sale to be divided among his nephews and nieces.' The proceeds of the sale, are of lands In fee simple, and as the nephews and neices have the benefit of a fee simple estate in the lands ordered to-be sold, it is argued it should be presumed he intended a fee simple in the devises to his brother-in law Clement and bis cousin Win. Smith. ' “The Remainder of my horses and of all my personal property, I bequeath to my dearly beloved mother Susannah Wilkinson, seni- or.” This is the last bequest in his will, and as it relates only to personal property, it is said it affords an inference that he thought he had disposed of all his real estate. With *respect to the*devise to Clement of the plantation at Willtown, I should .declare tháthé took under it only a life estate, but for some late cases decided in this court, to the authority of which I am bound to submit; l think that the case of *Whaley*& Jenkins, *3 Eq. Rep.*governs this, and that the devise carried a fee. ft is ordered and decreed accordingly.

From this decree complainants appealed, and moved to re»verse it on both the points involved in the case.

*Desaussure,*for motion.

It is clearly the English rale that a devise' of lands, without any words of inheritance or perpetuity, gives only an estate for life. 6 *Cruise’s Dig.*304; 1 *Bridg. Dig.*535. It is contended however, that the decisions of this court have established a different rule; but upon examining those decisions it will *he*found that they are reconcilable with the English cases. In the case of *Whaley*and *Jenkins,*the will contained the introductory words “with respect, to my worldly estate;” which the English judges have held to enlarge the subsequent unqualified devise of lands to a fee. Coup. 352; Id. 659; Doug. 760. The case of Clarke and Mikell, 3 *Eq. R.*168, was decided on similar introductory frords. And so in *Fraser*and *Hamilton,*2 *Eq. Re.*575.

As to the validity of the settlement; William Clement took possession of the property devised to him in trust, sold the *77swamp land for $10,000, and the lands at Coosawhatchie for *‡*1500. Could he take possession of the property devised to himself and settle it beyond the reach of his creditors, and at the same time take the property with which he was entrusted for others, sell it and dissipate the proceeds?

"William Clement took possession of this property a year before he settled it. He was at the time of the settlement indebted to the amount of live or six hundred dollars and was executor of Wilkinson. We contend that his debts alone were sufficient to vitiate the settlement as to the creditors of that date; and if void as to them, subsequent creditors may take advantage of it. *Reid,-vs. Livingston,*3 *Johns. Ch. Ca.*481; *Bailarsbee,*vs. *Farrington,*1 *Swan.*106; *Montacute,*vs. *Maxwell, 1 Pr. Wins.*618. 1 *Atlc, 93/ 2 Aik.*600; 12 *Fes.*155; 2 *Br. Ch. Ca. 147.*

But the ground most relied on is, that he was a trustee at the time and could not settle any property so as to shield it from responsibility for his breach of trust. He certainly was accountable for the property which was in his hands; he was a debtor to his ces tui qui trust to that amount; and while a debtor, he could not, according to every principle and authority, make a valid settlement. The act of the legislature of 1785, relates only to ante-nuptial settlements: post-nuptial settlements are not within it and must be regarded as merely voluntary.

But if wc are to regard Clement’s debt to the complainants as having accrued subsequently to the settlement, still we are entitled to consider it fraudulent and void. The rule is that if one make a voluntary conveyance, with the intention of contracting debts afterwards, it will be void. *Mol. on fraud/ Con. 35, 27, 238, 9.*But intentions are not the subject of clear and direct evidence; tve must ascertain them as well as we can, by referring to subsequent acts; and if these are such as to afford reason for believing that the parties *may*have acted with fraudulent views, we are warranted in coming to that cop-elusion.

*78Iij fhiVcase,’ William Clement sold the lands *of the com**-*plainanis soon after the execution of his settlement. When he received the proceeds or spent them does not appear. The circumstances- certainly afford grounds fo-r concluding that he had these transactions in view when he made his conveyance.

*Peligra, Axon*and *Hunt,*contra.

If the devise of the plantation to 'William Clement ss So be governed by the English rules*, it rnay *be*admitted that a fee would not pass. But. the English cases on this bead can be no- authority here; because they are inconsistent with-themselves, and. depend on. principles. which have no application. here,

In the constructioav'of these devises, the English judges profess to be governed *by two*rules: 1st. that- *the*testators *intention must*be followed where it can be knOwn: 2nd. that the heir is not to be excluded without express or clear terms of ex« elusion. *Moor,*vs. *Dcnn.*2 *Bos.*and *Pul.*250. But it is easy Co- perceive that these two rules arc inconsistent with one another. If the intention of the testators be the real enquiry, the same words that would express his intention in one case-, would be- equally expressive whether the heir be affected by them or another person*, and express words are not more necessary to point out the testator’s meaning in giving away land, than in making any other disposition. But infact the claim of the heir at law does not depend on the testator’s meaning at all: Ke claims by the law; not from the bounty of the ancestor, but from the same tenure by which the .ancestors held. It would be as easy to serve two masters with opposite wills, as to follow at the same time two rules that are at variance with one another.

An examination of the cases will show that the decisions have conformed to neither rule. For. if express terms be necessary to exclude the heir, all. those cases in which the judges have held the devise to amount to a fee by implication, must be abandoned. In Holdfast, vs. Martin, 1 *T. R.*411. a devise1 of i!my estate at A.” was *held to*pass a fee, *because the*word estate may signify all the interest that one has; but surely there were no clear terms of exclusion here. - Indeed it is highly im*79probable'that the testator used the word “estate” in relation to the “status” or *idea*of property which ho held at A; and yet unless he did so, it amounts to no more than if he had said ■“! give my fends atA.” In *Doe,*vs. *Richards, 3 T.B.*'356, it was held that a bequest of “all the rest of all my lands, tenements, heredita-ments, goods and chattels, *my legacies and funeral cadences being thereout paid,”*would carry a fee. So the words *real •effects. Hogan,*vs. *Jackson, Cow.*299. • And even the introductory words of a will, expressing an intention to dispose of his *worldly estate*have been held sufficient for this purpose» *Loveacre,*vs. *Blight, Cow.*352. It is evident that these cases were determined merely upon the testator’s intention, and are inconsistent with the idea that the heir -is not -to be excluded without clear and express term of exclusion.

But there are other cases, in which the testator’s intention has been wholly disappointed, by -adhering to the rule in favor -of the heir. It is needless to do more than refer to lord Mansfield’s observations on ibis subject. “I really believe,'” -says his lordship, “that almost every case determined by this rule, ns applied to a devise of lands in a will, has defeated the real intention of the testator: For common people, and even fherso who have some knowledge of the lav/, do not distinguish between a bequest of personalty and a devise of land or real estate. Butas they know whenthey give a man a horse, that they give it him for ever, so they think if they give a house or land, it will continue the sole property of the person'to whom they had left it*” Loveacre, vs. Bright, *Cow.*355.

Bui the cases are not only inconsistent by turns,, with either rule; they are also inconsistent with one another.

In *Loveacre, vs. Bright, Cow,*352 it was held that the introductory words expressive of a disposition to make a will touching his worldly estate, followed by a general devise of land without words of limitation, would give a fee. But in *'Frogmorton,*vs. *Wright, 3 Wils.*414: (and see also, *Denn,vs. Gas7dn.Boug.lQ0,}*it was ruled otherwise. Again, in this same case of Frogmorton, us. Wright, the chief justice does not doubt that the word “hereditaments” will carry a fee in 'a 'will. But in Moor and *80Denn, *2 Sos.*& *Pul.*250, this very point was under consideration, and it was determined that the word hereditament, gives only an estate for life.

In *Doc,*vs. Richards, 3 *T. R.*356, a bequest of lands and goods, *“my debts being thereout paid”*was held a fee; But in Moor and Denn the words were “all the rest of my lands, tenements and hereditaments, and all my goods and chattels, *after payment of my just debts,*I give and bequeath to Sisily Carr;” 2. *Bos.*& *Pul. 250;*and it was decided that Sisilv Carr took only an estate for life. It may be safely said then, that the English cases furnish no consistent principle of .decision, and that the confusion arises from admitting in the construction of wills, two rules that are irreconcilable with' each other.

But this embarrassment does not exist in this country. By the act for abolishing the rights of primogeniture, the condition of the heir at law is done away. But the only reason in England for not construing devises of land according to the intention of the testators, just like a bequest of personalty, arises from the condition and the rights of the heir at law. It is a maxim, *cessante causa, cessat lex,*and as the reason of the ruléis done’away, the rule itself cannot be any longer offorce. This is the view of the subject taken by chiefjustice Pendleton; who, in admitting the authority of the English cases, on devises ofland before the revolution, exp -esses his opinion clearly, that since the alteration of the rules of descent as to real estate in Virginia, those cases will not apply. Every argument from principle therefore, is in favor of construing devises of this sort according to the real intention. And the act of assembly for permitting devises ofland is general. “Any person having right or title *to-*any lands, tenements, or hereditaments whatsoever, may dispose thereof by will.” *P. L.*491. There is no technical form of words prescribed, there are no rights of the heir at law to be protected, and it is only necessary to know what is the intention of the testators.

But this question has already been decided; and it is impossible to distinguish this case from *Whaley*& *Jenkins,*3 *Eq.*
      *81
      *jRep**80, without introducing all the uncertainty of the English cases.

But if proof of the intention to give á fee is required, there is enough in the will to satisfy every reasonable doubt.

The circumstances of the testator shew he meant to give the fee simple.' Of his sisters he excluded two; but made provision for their children. Is it to be supposed that he meant to be more liberal to those nephews and nieces than to a favorite sister, whose children would be thereby excluded. If he did not mean a fee, we must suppose him to have intended to give the plantation, after Clement’s death, to those sisters whom he has not mentioned. The limitation over, in case of his nephew’s dying, shews he did not mean their parents to take; which is further proof that he did not mean to give them the reversion of the plantation- devised to Clement. The bequest of residue being confined to personalty, shews that he thought he had given all his real estate.

His honor at the hearing, relied on the circumstance that the devise to complainants contains no words of limitation; and in this particular, his opinion agrees with justice Bullet in a similar case. “In Chester, vs. *Paynter,*it appeared that the testator knew how to give a fee, for he gave an estate to his son and his heirs; but where he wished tó give only an estate for life, he omited the word-heirs. Now apply that to the present cases- In another part of the will the testator gave an estate for life in express words, which shows that if he had intended to give only an estate for life to Mrs. Martin, he would have added the same words.” 1 T. U. 414. It is said that the direction to sell, showed he intended to give complainants a fee; but that is only an implication of bis intent» It explains the devise to complainants, and shows that without any words of limitation he thought that he could give the fee.

The power of disposing by will, which is annexed to his mother’s estate, is relied on: but these words are restrictive; not intended to enlarge her estate, but to prevent her from disposing in her life-time. *Reid,*vs. *Skergoid, IQ 'Vís.*379¿ *Brad* ley,*vs. *Westeoat,*13 *Ves,*445.

*82As to the settlement. It is impeached because it was exc-cuted after marriage, and Clement was indebted at the time to the amount of about *$500.*But it is good, because made in pursuance of an agreement before marriage. 1 *Ves. Jun.*196, and the cases there cited. There is no case to the contrary but a decision of chancellor Kent. The opinion of the master of the rolls in Farringdon, *vs.*Battersbee, l *Swan.*106,. seems to *be*in favor of such a settlement.

But even considered as a voluntary settlement, it is not void unless it be fraudulent. 9 *Ves.*193. It cannot be fraudulent if it be made with honest intentions and in pursuance of an agreement before marriage, for such an agreement is binding in conscience. But it is said that it is fraudulent against the creditors to whom he was then indebted; and if fraudulent as to them, it is void altogether. It may be true that such a settlement would not protect the property from the creditors to whom the settlor was indebted at the time; bul: it does not follow that the settlement is fraudulent. The distinction is between the common law and *Stat. of Eliz. cap.*13»_ If a person owing debts makes a voluntary settlement, the creditors are entitled, independent of the Stat. of Eliz. to satisfaction, even out of the estates settled. For the creditor, by the. consideration which he has paid, has an equity superior to every volunteer who is subsequent to him. But the mere circuía*» stance of the settlor’s being indebted at the time, does not bring him within the *Stat. of Eliz.*which says not one word of voluntary deeds, nor of deeds by a person indebted. *Lush,*vs. *Wilkinson,*5 *Ves.*384. The third section, which punishes the parties to fraudulent deeds with forfeiture and imprisonment,, shows the meaning of the statute. P. *L.*69. It is impossible to say that William Clement by settling his wife’s fortune, in pursuance of an agreement made before marriage, and by settling the lands which his brother-in-law had given him for the use of his family, as he understood the gift, committed a criminal act.

The testimony of Col. Cattel is admissible *to*shew the *Iona Jtdes*of Clement. The argument founded on the circumstance *83
      *ef*his being a trustee amounts to this, that all his property was mortgaged for the faithful performance of his trust. The settlement limits the property to the longest liver, discharged of the trust; which shews that he could not haye made it in contemplation of insolvency.

Chancellor *Eesaussure.*

Two very distinct questions occur in this case: — The 1st is outlie construction of the will of the late Mr. Ed. Wilkinson. The 2nd is as to the validity of the marriage -settlement of the late Mr. William Clement. The words of the devise which are to be construed are as follows: “I devise my plantation at Willtown, called the Island River Plantation, to my brother-in-law Wm. Clement. There are no words of inheritance or of perpetuity in. this devise. The representatives of Mr. Wm. Clement claim the property as a devise in fee: — This is -denied'by the complainants. The circuit court was of opinion, and so,decreed, that the decided cases in this court had settled doctrine that words of inheritance or of perpetuity were not necessary in last wills and testaments, and that therefore Mr. Clement took a fee under this devise. I have considered this case, and agree in opinion with the circuit court, that the decisions heretofore made have settled this doctrine. I allude to the cases of *Whaley and Jenkins,*3 *Eq. Rep.*80; *Clark and Mikel,*3 *Eg. Rep.*168, *Waring and Middleton,*3 *Eq. Rep.*249. It seems scarcely necessary after those cases to examine-the subject further. But 1 will add a few words.

It is well known that many of the judges in England have regretted the rigor of the rule which required words of inheritance or perpetuity to give a fee in devises of real estate. — For it is notorious that the rule tended to defeat the intention of the testator in nine cases out of ten at least. But the anxious desire of the law and the courts to watch over the interest of the heir-at-law introduced another rule, that the heir-at-law was never to be disinherited but by express words or plain and necessary implication. That rule produced a perpetual struggle-between the two principles, the duty of giving effect to the wills of testators, and the desire to favor the heir-at-law, the main support of the landed Aristocracy. Since the abolitiotf *84of the rights of primogeniture, which flowed naturally and necessarily from the nature of our government, we have no such contending principles existing in our system. Equality of rights is equity, politically as well as morally. It is the duty of the court to endeavor in the construction of wills to ascertain the intention of the testator,, and to give, effect to that intention, without regard to technical phraseology. In the case before us, the words of the will gave the land unqualifiedly to Mr. Clement, and I have no doubt that the testator intended to give a fee simple. I have no doubt, because in all such cases the testator would limit the estate for life or years, if he so untended. He makes no further disposition of the property¿ as. he would have done if he had not meant to give a fee. Believing then that be meant to give a fee, I feel bound to give effect to that intent, notwithstanding the absence of words of inheritance or perpetuity. And the decided cases warrant our giving effect to that intention.

We come next to consider the question of the effect of the postnuptial settlement made by Mr. Wm. Clement of his property. He acquired the land under the will of his brother-in-law! the slaves on Ms marriage with his wife; and lie fiad little or no other property. He made a marriage settlement subsequent to his marriage, including all the property so acquired. He appears to have been in debt at the time of the execution of the said instrument. These debts were however small, and very far short of the value of the property settled. It is contended for the complainants that the settlement is void: and that the property should be subjected to the payment of all Mr. Clement’s debts. It must be remembered here that tho’ Mr. Clement died deeply in debt, there are no creditors before the court seeking relief against the settlement, except the complainants, who are legatees of Mr. Edward Wilkinson. He devised certain tracts of land to be sold, and the proceeds to be divided among these nephews and nieces. It appears that Mr. Clement, who qualified as executor on the will, sold these lands and received and spent the proceeds, and has died insolvent; so *85shat they will lose their legacies, unless the settled property be subjected to the payment*

It is doubtless true that a voluntary settlement, made after marriage, cannot be sustained against prior creditors. They must be paid out of the property so settled. And it is equally true that when a man settles all his property after marriage, and soon after contracts large debts, so as to manifest that the object of the party was to cover his property, and then to incur debts without the means of paying them, the instrument will be void. For this raises a vehement presumption of fraud, and the settlement will not be supported. The circumstances of this case, if they do not actually warrant the conclusion of a fraudulent intent, operate as a legal fraud. The property in question •came to Mr. Clement wholly from his wife and her brother, and he was under a moral obligation to make a provision for his wife and her children, provided he did no injustice to others. His debts were not contracted immediately after the settlement, but gradually and in the lapse of years; and Mr. Clement’s failure arose partly from losses on friendly indorsements. I am unwilling therefore, under these circumstances, to say that the marriage settlement was made expressly with a view to deceive or defraud general and subsequent creditors; and with respect to ordinary debts contracted after the settlement, I am inclined io think that they would not be allowed to defeat the settlement, which was regularly recorded.

But it does appear to me that the facts of this cause make a very strong case for relief to these complainants, which may be given in perfect conformity to the principles above stated. The testator, Mr. Edward Wilkinson, after devising the tract of land at Willtown, called the island River Swamp Plantation, to Mr. William *Clement,*devised three oilier tracts of land to be sold by his executors, on the best terms they could obtain, most conducive to the ínteres* 'of those concerned; and then directed the monies arising from the sale of the said three tracts of land to be equally divided, share and share alike, among his (the-testator’s) nephews and nieces, the issue of his sisters who were born at the time of making the-will, or might *86be born within four months from the date of the will; with right of survivorship, in case of the death of any of the said nephews and nieces, unmarried or without making a will. Mr. Clement was named an executor, and accepted the devise to himself. He also qualified on the will as an executor, and under, took the trust committed to the executors, to sell the other lands for the benefit of the testator’s nephews and nieces. In fact he alone afterwards acted in the sale of the lands, and received the money in trust for them. This money it is admitted he has spent, and is dead insolvent; so that the nephews and nieces can receive nothing, unless protected from the operation of this post-nuptial settlement. On the maturest deliberation I think they are entitled to that protection. Why are post-nuptial settlements constantly declared void as to antecedent debts? Certainly not because those debts have any liens on the property comprehended in the settlement; for such settlements are declared void as to antecedent debts, whether secured by mortgages or judgments or whether owing on bonds or notes not yet due. They are avoided then because of the pre-existing engagements of the husband, at the time *he*makes the post-nuptial settlement; and because of the moral as well as legal obligation to comply with those engagements, before he puts his property out of the way of making them good. Now I consider the acceptance by Mr. Clement of the trust under the will of Mr. Wilkinson for the benefit of the nephews and nieces, and his holding the property under said trust, as an existing engagement at the time of executing the post-nuptial settlement, which he was bound to fulfil. He has not done so. He sold theland, received the money, spent it and left no estate to pay the nephews and nieces, except that comprehended in the post-nuptial settle-tlement. I do not think ho had any more right to cover his property by a post-nuptial settlement against this trust, then existing and the propertj' in his hands, than he had to protect it by such an instrument against any other pre-existing engagement, such as a bond or note. The conclusion then is, that the post-nuptial settlement is void against the claims of the com. plainants.

*87It is therefore ordered and decreed that the decree of the circuit court he affirmed as to the devise, and reversed as to the marriage settlement, and that it h'e referred to the commissioner to examine and report what sales of the lands devised to be sold for the benefit of the nephews and nieces, were made by Mr. Clement, and for what sums of money: and that the property com, prehended in the post-nuptial settlement be held liable to the payment of the sums which may be found due; and also that the commissioner do enquire into and report what nephews and nieces or their representatives are in existence, to receive and share the amount so due.

Chancellors *Thompson*and *James*concurred.

Chancellor *Gaíllard.*

I concur in the opinion of the circuit court in those parts in which is affirmed, for the reasons assigned in it.

Chancellor *Waties.*

I concur in affirming the decree of the circuit court in this case in the construction of the will of E. Wilkinson, on the grounds taken in the present decree: but I differ from the majority of the court in the construction of the settlement of W. Clement, for the reasons stated by judge Gail-lard in his separate opinion, which [ have also signed.

Chancellor *Gaíllard,*

dissenting. It is said that although the settlement be good as to subsequent debts, it is void as to the demands of the complainants, as they are entitled under the will of Mr. Wilkinson to the proceeds of lands, ordered by him to be sold by his executor, and which were sold by Mr. Clement as such, and who received and never accounted for them. I do not consider the claim as at all analogous to a debt existing at the time of settlement; it is true the trust then existed, but the breach of trust or fraud, should thatbeimpuled to Mr. Clement, was long subsequent, and until the one or the other was committed, he incurred no liability. The settlement in no wise affected the interests ofthe complainants at the time of its execution. Itwasa fair transaction, and its original character could not be altered by subsequent events. The claim of the complainants can only be sustained by giving to the conduct of Mr. Clement, after the settlement, a retrospective effect* by connecting his breach oC *88trust with its acceptance, and considering the time of the acceptance as that of the existence of their claim; but this cannot be, for the deed being valid when it was executed, rights were instantly acquired under it, and these were entirely beyond the control *of*Mr. Clement, and no acts of his could prejudice them; nor can the settlement be considered as subject to the trust, since the acceptance of a trust does not give to the ces-tuique trust an equitable lien on the estate of his trustee. Mr. Clement rendered himself personally liable for an> breach, of trust he may have committed, but its consequences cannot be visited on the property contained in the settlement.

Chancellor *PVaiies.*

I concur in the construction given to the settlement, by judge Gaillard.