Hubbard v. Price

Benning, J. By the Court. delivering the opinion. The money ($848) came from the estate of the father of the debtor’s wife. It was, therefore, a fund out of which she was entitled to a suitable settlement; and a Court of Equity would, on her application, have compelled the debtor, her husband, willing or unwilling, to make the settlement. This is undisputed. Men may do of their own accord, whatever a Court of Equity, any Court, would compel them to do. That this is true, as a general principle, nobody denies. Does not this case fall within it? Why not? The creditors of the husband can have no cause of objection ; the credit they gave was not given on the faith of this fund. Consequently, should they get the fund they would get more _than they bargained for. Thehu'sband does not object; he consents. The creditors and- the husband are all that could object. To require the wife to go into equity, would be merely to cause a good part of the fund to be consumed in litigation; one of the poorest uses to which it could be put. There does not s.eem to be any reason, then, why this case should not fall within the general principle. And Judge Lumpkin and I think that it does fall within the general principle. He and I think, then, that if this fund was not more than enough for a suitable provision for the wife, and if it was by the executor turned over to her for her separate use, and [635] was by her placed in the hands pf a trustee, with the consent of her husband, the fund became one well settled to-her separate use; and, therefore,one not subject to her husband’s debts. ' It follows that Judge Lumpkin and I think that the charge of the Court was erroneous. But if it be true that it was lawful- for the husband to consent to this arrangement, it must be true, that he had the right to prove that he had consented to it. And what better rvay of proving that, was there, than that of proving that he said, he had consented to it ? I know of none. If this be so, it follows, that the Court below erred in ruling out the sayings of the husband. Judge McDonald doubts the foregoing conclusions of the other two members of the Court; but he thinks, that the schedule made a full and fair disclosure as to this fund, so as to enable the creditors to pursue it if they should think fit to do so, and that more than this, was not required of the debt- or. “ Leaving the question open, as to whether under the facts disclosed, the wife may not enforce her equity as to the money received from the executor of her father’s estate, between her and her husband, and her husband’s creditors.” All three of us then, think, that the judgment of the Court below ought to be reversed. Judgment reversed.