
    William M’Elwee v. George J. Sutton.
    Where (.he donor, at the time of making a voluntary gift, is indebted beyond small sums for the current expenses of his family, or debts inconsiderable in comparison with the value of his property, the gift is fraudulent and void as to existing creditors. Nor will the subsequent payment of the antecedent debts, in all cases, render the gift valid, even as against subsequent creditors: If the old debts are discharged by contracting new ones, or they remain until out of the wreck of the donor’s estate, they are paid off on account of their priority, and the donor was, in fact, never free of debt, from the date of the gift, it is void as to subsequent as well as antecedent creditors.
    Where a gift is impeached by creditors, it is competent for them to introduce evidence of other gifts of his properly by the donor.
    Where a deed is proved by evidence of the death, and hand-wiiting of a subscribing witness, it is competent for the opposite party to shew that the same witness had both slated and made affidavit of the fact, that the deed was antedated.
    Where competent testimony is excluded, and the Court cannot see that it could have bad no effect on the verdict, a new trial must be granted.
    Tried before Mr. Justice Gantt, at York, Fall Term, 1830.
    Trover for a negro slave. The plaintiff claimed, as purchaser at a sale, made by the sheriff, in 1825, under an execution in favor of M. Nash against James J. Sutton: the defendant' claimed by deed of gift from his father, the said James J. Sutton, dated in 1819 : and the question was, whether this latter deed was valid.
    The debt on which Nash’s execution was founded, was not in existence at the date of the gift to defendant; but the plaintiff relied on the following circumstances to avoid the gift for fraud. At the time of the gift, James J. Sutton, the father, was indebted to the amount of six or seven thousand dollars, being, at least, one half the value of his whole estate; and, independently of the gift to defendant, had made gifts to each of his other children, being six or seven in number. These gifts were said to be secret, but the evidence was contradictory: they seem, at least, not to have been generally known, and the donor remained in possession of the property. The subsisting debts were all paid, but this appears to have been effected chiefly by contracting new ones; for the amount due by James J. Sutton, at the date of the gift, was never diminished, but progressively increased, until he died utterly insolvent. No less than sixty-seven executions against him were produced in evidence.
    
      The defendant proved a gift by parol previous to the execution of the deed: The deed, however, was introduced, and proved by evidence of the death and hand-writing of John Veil, the subscribing witness, and of the hand-writing of the donor. The plaintiff offered testimony to prove that Veil had frequently said, and even made affidavit, that the deed had been antedated, in order to protect the property; but this testimony his Honor rejected.
    His Honor also refused to admit evidence of the gifts made by James J. Sutton to his other children.
    The jury were charged by the presiding Judge, that there was no fraud in the case; and they found accordingly for the defendant. The plaintiff moved for a new trial on several grounds, of which the following alone were considered by the Court of Appeals.
    First, That Veil’s declarations and affidavit were improperly excluded.
    Second, That plaintiff ought to have been permitted to shew the number and amount of other gifts by plaintiff’s donor.
    Third, That the indebtedness of James J. Sutton was sufficient, under the circumstances, to render the gift void.
    Williams, for the motion.
    Rogers, contra.
    
   O’Neall J.

delivered the opinion of the Court.

On the first ground, it may be remarked, that if Veil had been present, and sworn, it could not have been questioned that he was competent to prove that the deed of gift did bear its true date; and that his statements that it did not, would have been equally competent to contradict him. The proof of his hand-writing, after his death, established the deed as a true and genuine paper; on presumptions: 1st, that' if it had not been so, he would not have witnessed it; and 2d, that if he had been alive, he would have given all the evidence necessary to support it. These, however, are only legal conclusions, from the fact of his death, and proof of his hand-writing. They may, therefore, be rebutted. To do this, nothing can be more satisfactory than to shew, that the witness himself had said, although I have witnessed the deed, yet I know it does not bear its genuine date; but was antedated to save the property. This is in effect a contradiction of the testimony which the law presumes him to give. 2 Stark. Ev. 4 part, 462-3. Wright v. Littler, 3 Burr. 1244. It is true, that without the deed, the parol gift was abundantly proved: yet it is possible that the jury predicated their verdict solely on the deed ; or the evidence of the deed’s being antedated might have satisfied them, that both the deed and gift were fraudulent. Where competent testimony is excluded, and the Court cannot see that it ,ni, could have had no effect on the verdict, anew trial must be granted.

Secondly, The testimony offered to shew that the donor had given other slaves to his other children, was surely competent in a question, where his ability to give depended so much on the relative value of his property to the amount of his debts. The ingenious counsel for the defendant stated, that his verdict was the result of a stated account between James J. Sutton and the world, as to the value of his property, and the amount of his debts. In order then, to ascertain how much he was worth, it was surely necessary to shew how much of the property in his hands he had given away, before hé made the gift to the defendant. But I presume whatever gifts he did make, might have been subsequent to the gift to the defendant: Still the evidence was admissible, for the purpose of shewing the intention in making the first gift.

To establish fraud, it is all important to shew, that the donor has given away so much of his property as to jeopardize the payment of his debts. In other words, that he has not been just, before he was generous. To do this, the creditors, or purchasers under their executions, must be allowed to shew, how much of his estate he has given away: and then if it should appear that this, taken in connexion with the rest of the case, makes out satisfactory proof that he could not have given, but with a view to provide for his children at the expense of his creditors, the gift must fail.

As to the third ground, it is now settled, that a slight indebtedness, such as for the current expenses of a family, or debts which are inconsiderable in comparison with the value of the donor’s property, will not vitiate a gift. Hudnall v. Teasdale, 1 M’C. 228. Hudnall v. Wilder, 4 M’C. 294. So too, if the donor at the time of the gift is indebted, but subsequently pays his debts, and is entirely free from debt, then such antecedent indebtedness cannot vitiate the gift: lb. But if the old debts are paid off by creating new ones, or they remain until out of the general wreck of the donor’s estate, they are paid off on account of their priority; then, I apprehend, the gift is equally as fraudulent, as if to ensure their payment it was necessary to be set aside. For in the first part of the proposition the original indebtedness was the cause of the subsequent; and in the second the antecedent debts, by being paid out of the fund common to both, deprive the subsequent or junior debts of all chance of being paid, unless the antecedent indebtedness, as to which the gift is bad, makes it also void as to subsequent creditors.

' In this case Mr. Sutton was indebted at the time of the gift, to more than one half of the value of his whole estate. These debts were probably never paid, until paid out of the sale of the whole of his estate. The donor was not, from the gift, to his death, ever free from debt. Under these circumstances, I should think the gift could not prevail, notwithstanding the sale of the slave was not necessary to pay the debts due by the donor at the time of the gift. The motion for a new trial is therefore granted.  