
    
      E. A. M. Ramsay, by Guardian, vs. John H. Joyce et ux.
    
    1. The defendant, Mrs. Joyce, (formerly Ramsay,) one month previous to her marriage with the defendant, John H. Joyce, and after the treaty of marriage had been entered into, without the knowledge or consent of her intended husband, executed to the complainant, (her daughter, by her previous marriage,) two deeds. Thereby, conveying her whole real and personal estate, (with a small reservation.) Held, that the execution of the deeds was a fraud upon the marital rights of the defendant.
    2. There is no distinction, whether the conveyance be to children or to strangers; it would introduce great uncertainty into the law, if we should set about to determine, according to the circumstance of every case, what is or what is not, a reasonable provision for children. A reasonable provision, is that of which the intended husband will approve. — Per Harper, Cii.
    3. The father of complainant, by this 1st. clause of his will, devised the whole of his estate, both real and personal to his wife, the defendant, Mrs. Joyce, during her natural life. By the 2nd.it is provided, that if the defendant (testator’s wife,) should die without issue — the whole estate, at her death, is to be distributed, according to the statute of distributions of this State, amongst his next kin. By the 3rd clause, it is further provided, that if the testator’s wife should have an heir before her death, then, that after his wife has enjoyed her life estate, the property, both real and personal, shall descend to her said heir forever.
    4. Held, that the word “ Hew,” used by the testator, was not used according to its technical meaning, and that the limitation was to any child or children his wife might have, either by the then existing, or any subsequent marriage.
    Heard, first, before Johnston, Ch.
    Greenville,
    
      June Term, 1839.
    The facts and circumstances of this case will he fully understood, by the subjoined decrees made in this case, by Johnston and Johnson, CC. which are herewith subjoined.
    The late John Ramsey, of Edgefield, at his death, which happened on the 9th of June, 1825, was seized of a tract of land lying in Edgefield district; and besides some dioses in action, and a good stock of horses, cattle, provisions, agricultural implements, and domestic furniture, was possessed of 19 slaves, exclusive of one, by the name of Charlotte, of whom more particular notice will be taken hereafter. At the time of his death, he was but slightly indebted.
    Having no children, but his wife being enciente, with the plaintiff, he executed the following will, the day before his decease, and left the same in full force.
    “1st. I give and devise all my property, both real and personal, to my beloved wife, Nancy Ramsay, during her natural life.
    2d. If my wife, Nancy Ramsey, should die with issue, it is my will and desire, that the whole of my property, both real and personal, shall be divided between my own relations, according to the statute of distribution, in this State; making them share equally, according to the nearest of kin.
    3rd. If my wife, Nancy Ramsay, should have an heir before her death, then it is my will and desire, that after she shall have enjoyed her life time estate, in my said property, above disposed of, that the whole thereof, both real and personal, shall descend to her said heir forever.
    4th. I hereby nominate and appoint my wife, Nancy Ramsay, executrix, and friend Robert Red and my brother Willis Ramsey, executors of this my last will and testament.”
    The testator’s widow, alone, qualified on the will, hut before any important act of administration, and very shortly after the testator’s death, she removed to Greenville, where her father resided, and where, in October, 1825, about 4 months after the death of the testator, the plaintiff was born.
    Early in December, of the same year, she returned to Edgefield, and caused an appraisement to be made of the greater part of the personalty of her testator. This ap-praisement included 19 of the slaves possessed by her testator, but excluded the slave Charlotte.
    The 19 were appraised at $5400, and the residue of property appraised, amounted to $1492,64, making the whole appraisment $6802,64. On the 18th of the next month, (January, 1826,) she sold of the property appraised, $1099,36 3-4.
    This included 8 of the 19 slaves appraised, who, as appears by the sale bill returned, were bid off by different persons, at $411,75, being about one sixth or one seventh of their appraised value; from which circumstance, and from the fact, that these slaves remained in her possession, as before, and that no notice is taken of the sale of them, in the pleadings, it is fair to presume, that the sale was colourable only, and intended to give the widow an absolute title in the slaves then sold, through the instrumentality of bye bidders: and that, upon better advice, the stratagem was abandoned.
    Having leased the Edgefield tract of land, and hired out such of the slaves as were not required about her person, the widow returned again to Greenville; where in August, 1826, she caused a further inventory and appraisment to be made of household furniture, in that district, to the amount of $134.
    From that time, till about 1829, she resided mostly with her father, in Greenville, the land and the greater portion of the slaves being hired out, in which number I do not include Charlotte, who was constantly with her. This slave, it may be proper to observe here, once for all, was never treated by her as belonging to her husband’s estate, but to Mr. Dozier, Mrs. Ramsay’s father, who, by his will in 1832, bequeathed her to his daughter.
    In 1828, Mrs. Ramsay purchased from the defendant, John H. Joyce, at the sum of $2800, a plantation lying on Reedy river, two or three miles from his, (Joyce’s,) residence, and about 18 from that of Mr. Dozier, Mrs. Ramsay’s-father; Joyce had purchased this land, under proceedings, in partition in this Court, as the estate of one Cureton, and was still indebted to the commissioner, by bond, about 1925 dollars, on account of the purchase. Mrs. Ramsay, gave him, (Joyce,) a promissory note, at 60 days, for $800,, and took up his bond to the commissioner, by giving that officer a mortgage of the plantation, and three bonds, to which Joyce was surety, for $666,66, each, payable in October, 1829, 1830 and 1831. The commissioner undertaking to pay over to Joyce the $75, which their bonds-exceeded Joyce’s bond to the commissioner, which was taken up. It may be proper to remark here, that Mrs. Ramsay, before her second marriage, which took place in 1832, paid off the note to Joyce, and the two first bonds which she had given to the commissioner. The third was still due at her second marriage, and was paid off by her second husband. In 1829, she removed to-the plantation thus purchased by her, and brought a few of the slaves to it, where she employed them in its cultivation.. The rest were hired out.
    Some time between the death of her testator and her second marriage, probably in the latter part of 1828, she purchased from her father a slave, called Fanny, and her family. Whether this purchase was made out of the crops or intermediate profits of the estate, we have no competent evidence to determine; nor is this fact material here.
    In 1831, she sent, by her agent, to Alabama, to be employed there, the slave Charlotte and 4 others, being part of the original 19 inventoried by her as belonging to the estate, with their descendants.
    On the 15th May, 1832, she was married to the said John H. Joyce, at her father’s residence, and he obtained possession of the slaves left in this State, consisting of 15 of the original 19, and their descendants and of Fanny and her family, 6 in number, making 21 in all. Of the former, he sent 3, and of the latter 1, (four in all,) to Alabama, in the autumn of 1832.
    The changes, by births and deaths, of the original stock of 19, and of Fanny’s family, both as to those sent to Alabama, and those which remained in this State, will appear satisfactorily with the schedule N. filed with the answer of the defendant, Joyce.
    Eighteen days before Mrs. Ramsay’s miarriage to Joyce, to wit, on the 27th April, 1832, being at her father’s house, she, in the presence of her father’s family, and of Miss Thompson, a young lady who lived with her, (and no other person being present,) executed two deeds, both of which were attested by her brother-in-law, Miles Gayle, and her brothers, Billups G. Dozier and John M. Dozier; by the first of which, in consideration of the natural love and affection, which she bore to her daughter Elizabeth A. M. Ramsay, (the plaintiff, then 6 1-2 years old,) she conveyed in fee, with warranty, to the said Elizabeth A. M. the tract of land belonging to her testator’s estate, in Edgefield, and the tract which she herself had purchased of Mr. Joyce; and by the second, on the same consideration, and with like warranty, she conveyed, to the same, 29 slaves, (being the whole of the original stock of 19, with their increase, and Fanny and her family then alive, and excluding Charlotte,) also all her stock of horses, cattle and hogs, and all her household and kitchen furniture.
    Sometime in 1834, owing to disagreements between Mr. and Mrs. Joyce, relating to these deeds, they separated, and have ever since lived apart. Mrs. Joyce went to Alabama, carrying the plaintiff Avith her, who is still in that State, with her maternal relations, who now reside there. The slaves Avho had been, transferred to that country, as before mentioned, were withheld by Mrs. Joyce’s friends, from her husband, who brought suit against them and recovered, and the slaves are now in the possession of his special agent.
    On the 27th July, 1836, the plaintiff, suing by her guardian, Mr. Kilgore, filed her bill, in which, after stating the will of her father, the executorship and second marriage of her mother, and the execution of the two deeds to the plaintiff, prior to that marriage, and the removal of part of the slaves to Alabama, she alleges that “she has good reasons to believe and does believe” that John H. Joyce intends to remove the residue out of the jurisdiction, and to deprive her of her rights under the will of her father and under the deeds of her mother. The bill prays that her rights, under the deeds, and will, may be declared, that the property conveyed to her by the former be delivered up, and that Joyce be enjoined from removing any part of the property out of the State; and for general relief. Mr. Joyce filed his answer on the 25th of September, 1837, in which he takes many grounds of defence, the most important of which are, 1st. that under the will, his wife took an absolute title to all the property of her first husband ; and 2nd. that the deeds, were executed by his intended wife, without his knowledge and consent, in fraud of his marital rights, and were therefore void as against him.
    Mrs. Joyce putin her answer on the 8th November, 1837, (after her husband’s was filed,) in which she re-affirms the charges of the bill, and controverts the statements contained in Mr. Joyce’s answer, particularly as regards the deeds; which, she asserts, were executed with his full knowledge and approbation.
    There is no proof whatever, of any act or declaration, on the part of Joyce, indicating an intention to carry any of the rest of the moveable property out of the jurisdiction .
    The questions, therefore, to be considered, relate principally to,
    1st. The validity of the deeds.
    2nd. The rights which the plaintiff takes under her father’s will!
    If Mr. Joyce did not consent to the deeds, and had no knowledge of them, when we was married, my impression is that they cannot be set up againt him; and that the bill should be dismissed as respects them ; this is as far as the Court could go, under the pleadings. The deeds cannot be set aside without a cross or original bill, filed by Mr. Joyce, for that purpose. But if the instruments in question were made without authority from Mr. Joyce, and unknown to him, I think the circumstances warrant the conclusion, that a fraud on him was intended; and if so, ii is an immaterial circumstance, that they contained a provision for the grantor’s child.
    Although, as Lord Brougham says, in St. George vs-Wake, (1 Mylen and Keene, 610, S. C. 7 Cond, Eng. Ch. R.. 194, there is little of positive decision in the cases, independent of special circumstances, upon the point, how far a husband is entitled to avoid voluntary conveyances, made by the wife, in derogation of his pecuniary expectations; yet it is certain that all the cases rank him as a purchaser of the property, held by the wife, during the treaty of marriage. J do not suppose that he has ever been regarded as a mere vendee, so as to be entitled to unravel trifling alterations' in the wife’s property, if made without his concurrence. But any material alteration if voluntary, would, without explanatory circumstances, be regarded as evidence of fraudulent intention, and be liable to just exception, on his part. I do not think, that a provision in favour of a child forms an exception to the general rule. The question is, always, whether the transaction was in good faith. The fact, that the provision is for a child, in no other way affects it, than that it more completely rebuts the presumption of fraudulent intention, and will, therefore, support a greater alienation of property, by the wife, than could be made to a friend, or other relation. Nothing has yet been decided on this latter head, in our own Courts,, though, ire some of the cases, there are speculations and dicta, which seem to draw a distinction between alienations to children and to others. In Me Clure vs. Me Clure, Jones vs. Cole, and Terry vs Hopkins, the fact was that the husbands had notice, or that was the construction given to the evidence; and in Lyles vs. Lyles, the provision was made by the husband, not by the wife, and the reflections-of the Chancellor were misconceived.
    Assuming therefore, that whether the alienation is valid, or void, depends entirely upon its fairness; and allowing' that the motive of a mother, in providing for prior issue, is strong evidence to rebut any presumption of unfair intention, let us see if, independently of the concurrence and knowledge of J<?yce, as to the conveyances made here, they Qomeup to the requisitions of fair dealing. Professor Story, la his Equity Jurisprudence, (1 vol. Ch. 7 § 273,) after laying down the doctrine, that a settlement secretly made by a woman, in contemplation of marriage, of her property to her own separate use, will beheld void, as in derogation of the marital rights of the husband, and a fraud upon his Just expectations, proceeds to remark that a secret conveyance, made by a woman, under like circumstances, in favour of a person, for whom she is under no moral obligation to provide, would be treated in like manner. .“But,” says he, “if she only reasonably provide for her children, by a former marriage, under circumstances of good faith, it would be otherwise.” The distinction, here drawn, between a stranger and child, is clearly founded upon the difference of moral obligation towards them, on the part of the wife; and the extent to which she may go on the score of moral obligation, in providing for a child, is to make a provision, reasonable both in reference to her own means, and to the necessities of the child ; and this must be done under circumstances of fairness, that is to say, all the circumstances, taken together, must bear witness, that her intention was to provide for the child, unmixed with any design to deceive or defraud the husband.
    The evidence in this case leaves no doubt, that the deeds were executed by Mrs. Ramsay, in contemplation of her approaching marriage, and after the treaty of marriage was concluded. There is as little doubt that with the exception of Charlotte, and a very trifling sum to pay her debts, the conveyances swept away the whole of the property in her possession, when she entered into the contract to marry: and placed her on the footing of great disparity, with her intended husband, who brought a liberal and unsettled fortune, to the marriage. It certainly was not reasonable to strip herself, to this extent, of the means of support, even for the settlement of a child; nor is it to be presumed she would have done it, if she had not looked to the means of her intended husband for indemnity. But If she did so, it was a calculation at his expense which she 'had no right in fairness or generosity to make, without his ■express knowledge and concurrence.
    If her child had been wholly destitute, I think the provision was one which, in prudence or in fairness to her intended husband, she could not afford to make. But it is fairly presumable she acted upon the popular interpreta tion of her husband’s will, and not upon the legal construction of that instrument; and assuming that she did so, and inferring her motives accordingly, she could not have supposed there was any necessity for the excessive provision which she made for her daughter, because she was already amply provided for, by the gift of the whole of the testator’s estate, subject only to the life estate of the mother.
    • If Mrs. Ramsay did not act upon the common sense construction of the will, but took advice as to its strict legal effect, and was advised that that was. different from its popular import, the proof of her having received such advice, would have been good evidence to rebut the presumption, that her motives were not based upon the general construction of the paper referred to. But the plaintiff has offered no such evidence.
    I will here, for a moment, as incidental to the point under discussion, consider the legal construction of the will. The testator in the first clause, gives his whole estate to the widow, during her life. In the third, he provides, that if she shall have an heir, before her death, the estate shall descend to that heir at the termination of her own life estate ; and in the second, he declares his desire, that if his wife shall die with,.(evidently meaning without) issue, his estate shall be distributed among his own next of kin.
    The testator, in requiring that the person, whom he designates as heir, should be born before his wife’s death, evinces clearly, that he did not employ the word, heir, in in its technical sense. He most evidently intended a child, to be bom of his-wife. No rule of construction suggests itself to my mind, nor has any been suggested by counsel, (for indeed the point was not argued, nor were any authorities adduced,) authorizing the inference, that the testator referred particularly to the plaintiff, the child with which his wife was enciente, when he penned his will, so as to confine the limitation over to that particular child, although it is impossible from the .state of facts existing at that time, to prevent such an impression, from being made on the mind; the legal conclusion seems to he, that the limitation was to any child Mrs. Ramsay might have, either by the then existing,, or any subsequent marriage. As any child or children, she might have, even after the birth of the plaintiff, would come equally within the description given by the testator, it seems to follow, that all would be entitled to come in for the bounty limited over. Upon the birth of the plaintiff, a right vested in her to have the testator’s estate upon the death of her mother, subject, however, to a division of that right, among such other children, as may yet be born, from the present or any future marriage. As the other children come into existence, rights will vest in them, in like manner as they have vested in the plaintiff. The death of the plaintiff or any other child of the testator’s widow, before the death of the widow herself, will not, in my opinion, divest their rights under the will; for the limitation is not to the children, (styled heirs,) who shall survive the widow, but to such children as she may have' during her life.
    Then comes in the second clause, which declares a second limitation over to the testator’s next of kin, in case the widow shall die without issue. Suppose this limitation good, it simply provides a contingency on which that, previously made to the widow s children, should be divested ; so as to deprive their collateral distributees, (for I am now supposing themselves and their issue, issue of the widow, to be dead,) of the benefit of it: on the other hand, if this ulterior limitation is void, for remoteness, the only consequence is, that that to the children continues undi-vested, and in full force ; but what I wish particularly to observe is, that there is no gift to the testator’s widow, beyond the children she shall have during her life: although the failure of issue is made the condition of the property’s going over to testator’s kindred. Therefore, the rule in Shelly’s case, referred to by the counsel, even if it was applicable to all descriptions of property in controversy here, cannot be applied to the words of this will; although the first limitation grafted on the life estate of Mr. Ramsay, is to her children, under the designation of heirs, and the second is made to depend upon the failure of her issue; and although both classes, children and issue, are heirs of her body, yet there is no gift to such heirs generally, or to her issue generally, so as to carry down the property to them, in indefinite succession; but the gift is, expressly, to particular heirs of her body, ascertained and described, so as to make them purchasers, and not inheritors of the bounty conferred.
    Indisposition prevents me from giving to this point that full examination, with reference to authorities, which I would desire; but I feel no reasonable doubt, upon the whole, that the point made in Mr. Joyce’s answer, laying claim to the whole estate, for his wife, is not sustainable, but that, on the contrary, the plaintiff has, under the will of her father, a present vested right to the same, to be enjoyed on her mother’s death. The only modification of which right is, that it must open to receive any other child which the mother may yet have.
    To return, now, to the question of the validity of the deeds. I have satisfied myself that nothing can rebut the apparently unfair intent with which they were executed, but proof that their execution was known to, or authorized by Mr. Joyce, before his marriage. On this point, a good deal of testimony has been offered; and if it were necessary, I could solve it, but not to my entire satisfaction. A jury will be better able to form a judgment on the fact, in consequence of their better knowledge of the character of the parties and witnesses. I will, therefore, order an issue, in which the burden of establishing the fact of authority from, or knowledgeon thepartof Mr. Joyce, will lie on the plaintiff. She must, therefore, proceed with all reasonable diligence, to tender the issue to the defendant, Joyce, to be tried by a jury of Greenville. And if unnecessary delay is manifested in doing so, the defendant, Joyce, may apply to dismiss the bill on that head.
    On the trial of the issue, that weight is to be allowed to the answer of Joyce, to which the rules of this Court entitle it. The depositions of witnesses already examined on commission, to be used on the trial, together with such other testimony as the law Court will receive.
    I have taken it for granted, that the execution of both deeds is established. Although a point was made by Mr. Joyce’s counsel, as to the deed of the lands, I think the proof is sufficient. If, however, the party objecting does not acquiesce in this opinion, he may, by giving notice, require the plaintiff to include that point in the issue hereby ordered.
    When the verdict is returned, the points relating to the executor’s liability may again be brought to the view of the Court, when they will be decided.
    The question of costs, together with all other questions, not decided in this opinion, are reserved.
    
      jDecree of Johnson, Chancellor, made in this case, June Term, 1841.
    The circumstances of this case will be found in the decree of the Court of June Term, 1839. Both of the issues, directed by that decree, have been tried in the Common Pleas, and a verdict for the defendant, John H. Joyce, have been found and certified to this Court. A motion is made to set aside the verdict, and to open the cause for trial here, on the general grounds, that they are contrary to law . and evidence. The decree before referred to, is the law of the case, and nothing was referred to the Common Pleas but the facts. These, so far as I have been able to collect, from the testimony, are all on the side of the verdict. The motion must, therefore, be dismissed.
    All that remains of the case is the allegation in the bill, that the defendant, John H. Joyce, is about to run off the property to deprive complainant’s ward of her remainder in it, and the prayer for an injunction to restrain him.
    There is no doubt about the power of the Court to award such process, but it is never done upon a mere suggestion or allegation. The apprehension of loss must be sustained by proof. Here, none was offered, and the defendant, John H. Joyce, denies expressly, in his answer, that he had any intention of removing the property now here. He admits, in his answer, that nine slaves were removed to Alabama, by his wife, before their intermarriage, and that he afterwards removed four others; and he states in his justification, that this was done with the knowledge and approbation of all the friends of the complainant’s ward,' and it is conceded that complainant’s ward and her mother reside there.
    I am not prepared to say that this act was wholly justifiable — but the bill does not complain of this matter. If it did, I cannot perceive how an injunction can effect it. If a loss is sustained, defendant, John H. Joyce, will, of course, be responsible ; but until that happens, there is no remedy.
    It cannot but be perceived, in looking through the whole case, that it has arisen out of the unhappy difference between the defendants, and that, but for that, every thing would have proceeded harmoniously ; and that defendant, John H. Joyce, so far as legal rights are concerned, has been comparatively blameless. Under these circumstances, I should not be disposed to apply the extraordinary power of the Court to aid the complainant in a questionable manner.
    It is therefore ordered and decreed, that the bill be dismissed.
    From this decree, the complainant appealed, on the grounds:
    1st. Because His Honor erred in deciding that a provision for children by a former marriage, made by a woman on the eve of marriage, and unknown to her intended husband, is a fraud upon his marital rights, and that the deed of conveyance is void on that account.
    2d. Because His Honor erred, admitting the deeds to be void, in not decreeing a support for the complainant during the life-time of Mrs. Joyce, which was obviously expected and intended in the will of Mr. Ramsay, the father of the complainant.
    3d. Because His Honor should, under any view of the case, have made the injunction, granted by the commissioner, perpetual, in order to restrain the defendant from moving the property out of the State.
    4th. Because, it being the duty of the guardian to test the validity of the deeds in question, the costs should have been paid out of the fund which will hereafter belong to the minor,
    B. F. Perry «fe H. Henry, for the motion.
    
   Varía, per Harper, Chancellor.

The jury having found that the deed in question was made without the knowledge of the intended husband, and it being certain that it was made in contemplation of marriage, and after an actual engagement to that effect, it only remains to inquire, whether such a deed can be supported. The remarks of Chancellor Johnston, in the decree of 1839, perhaps comprehend all that is necessary to be said on the subject; but as the subject is a new one in our Courts, it-has been thought proper to make a further investigation of authorities. Of the general rule, that a voluntary conveyance made by a wife, pending a treaty of marriage, and with a view to it, without the knowledge of. the intended husband, is void as a fraud on the marital rights, has' never, I believe, been questioned. And though it is said by Lord Chancellor Brougham, in St. George vs. Wake, 1 Mylne and Keene, 610, that the doctrine rests more upon dicta than actual decision, he himself does not question it. The case of Carleton vs. Millington, 2 Vern. 17, where, in contemplation of marriage, the wife conveyed to trustees, in trust, to dispose of the property as she should direct; and that of Goddard vs. Snow, Russ. 485, where, ten months before the marriage, but still with a view to it, the wife had conveyed in like manner; and, as, it is said, that of Havord vs. Hooker, 2 Ch. R. 81, seem to be decisions, and expressly in point. It is recognized in Ball vs. Montgomery, 2 Ves. jr. 191; in Strathmore vs. Bowes,id. 22 ; and indeed, in all the cases which have been supposed to introduce a modification of it. The modification contended for, is, that if the object of the conveyance is to make a provision for the children of a former marriage, this will be supported. The law is found so expressed in some of the elementary books; and dicta to that effect may, perhaps, be found in some of the reported cases. But all these, I believe, are derived from the case of Hunt vs. Matthews, 1 Vern. 408. In that case, according to the original report, the wife had assigned over the greater part of her estate, in trust, for the children of her former marriage ; and the chancellor is reported to have said, that she might, with a good conscience, provide for children of the first marriage. Bui Mr. Cox, in the notes to his edition, corrects the re-port from the register’s book, and states, that the assignment was known to the second husband before the marriage. Blithe’s case, Freem. 91, has been relied upon. There the wife assigned a lease of £3, annual value, in trust, for herself for life, with remainder to her daughter. It was said by the Court, that, being a thing of small value, and there appearing no marriage treaty, nor any contemplation of this lease, the deed might be supported. In that case, too, the wife had received the income for her life, and, after her death, the daughter, during the life of the husband, and the bill was brought by his administrator, to set the conveyance aside, and the Court might very well have thought that the acquiescence of the husband was evidence of its fairness, and that his representative should not impugn it. In King vs. Cotton, 2 P. Wms. 674, it was in evidence, that the conveyance was made before the treaty of marriage, in the most public- manner — at an entertainment given to tenants — and though the Court speaks of the • mean circumstances of the husband, and of his not offering to make any - settlement, yet, certainly, these circumstances were not necessary to the decision. In Strathmore vs. Bowes, though executed a very short time before the marriage, the settlement was before the treaty of marriage- with the defendant. It was made in contemplation of marriage with a former suitor, with his knowledge and consent. In St. George vs. Wake, the Chancellor decided upon the ground that there was no concealment, and that the deed was probably known to the husband. He argues, however, that in such cases the question must always be of actual fraud; that the cases seem to authorize the taking of all the circumstances into consideration; the circumstances of the husband, as to pecuniary means, (fee.; but the one thing needful is fraud; fraudulent concealment. No other case besides this, furnishes any ground for the exception to the general rule,which is supposed to exist, when the conveyance is to provide for children of a former marriage,' rather ■ than for a stranger. These dicta, or this reasoning of Lord Brougham, seem to afford the only ground for what is said by Mr. Justice Story, in his commentary on equity jurisprudence; that though the secret conveyance of the woman, in favor of one for whom she was under moral obligation to provide, will be void, yet “ if she only reasonably provides for her children by a former marriage, under circumstances of good faith, it would be otherwise.” It is to this case, and that of King vs. Cotton, that he refers for authority. As to what is said in our own reported cases, Lyles vs. Lyles, and Jones vs. Cole, they can hardly be called dicta. ' 'Laying down the general law; that a voluntary conveyance made, pending a marriage treaty, without the knowledge of the husband, is void, they add — unless it be to provide for children. This can hardly be said to express an opinion that there is such an exception in favor of children. In Terry vs. Hopkins, 1 Hill Ch. 1, Chancellor BeSaussure questions the doctrine, and quotes the reasoning of Roper, in his law of husband and wife ; that if the conveyance is to be avoided, on the ground of fraud on the husband, it is equally fraudulent, whether in favor of children or any one else. But certainly no case or dictum supports the notion, that every conveyance making provision for the children of a former marriage, shall be valid; and it would be difficult to find a stronger case against the deed than in this instance. It was made after the marriage engagement, and a month before the actual marriage, privately, at the house of her father, with the knowledge only of kindred and inmates ; it was of her whole property, to a child already well provided for, and the husband had a a fortune adequate to her own. Under these circum,stan-ces, it is impossible that the deed should stand, and such is the judgment of the Court. My individual opinion would be, that there is no distinction, whether the conveyance be to children or to a stranger, and that it would introduce great uncertainty into the law, if we should .set about to determine, according to the circumstances of every case, what is, or is not, a reasonable provision for children. A reasonable provision is that of which the intended husband will approve. It is, in every case, in the power of the intended wife to communicate her intention to provide for her children to the husband; and if it be in fact reasonable, and he should refuse his consent, and break off the treaty upon this provocation, she will have reason to congratulate herself. To leave it in the power of women to make such secret dispositions on the eve of marriage would.be injurious, not a benefit to them. Nothing' would be more likely to create conjugal unhappiness after the marriage, of which we have an unfortunate instance in the present case. It is the familiar law, that the husband is regarded as a purchaser of the wife’s property, and that marriage is a valuable consideration. As said by the Chancellor, in Strathmore vs. Bowes, “ the law conveys the marital rights, because it charges him with all the bur-thens which are the consideration he pays for them.” In this case, the defendant, since his marriage, has paid off a debt contracted by his wife before her marriage, for part of the property included in her conveyance. Now, suppose a person should convey, for a pecuniary consideration, property of which he had before conveyed a part to his children, could there be any question of the fraud ? A person in debt making a voluntary conveyance, is presumed to intend fraud on his creditors ; and his moral obligation to provide for his children, will not cure the transaction, if the conveyance be to them. As said by Roper, if the secret conveyance of the wife be void on the score of fraud on the husband, it can make no difference whether it be in favor of children or any one else.. It is hardly necessary to say, that the Court cannot afford the relief prayed for by the second ground of appeal. With respect to the 3d ground, and the injunction which has been granted in the case, it may be well to explain that they are entirely misconceived. The practice of granting injunctions against the removal of property from the State, which has sometimes obtained, is entirely inefficient- and irregular. An injunction is for the purpose of restraining proceedings in another Court within the State, or to restrain some act in relation to landed property, which cannot be removed from the State ; and if the party disobeys, the Court may always find and punish him by its process. If there be ground to apprehend that a party will not abide a decree of the Court, the proper process to compel him to do so, is the writ of ne exeat. If, upon the hearing, there appear sufficient grounds to apprehend that a tenant for life will remove the property from the State, the Court will compel him to give security for its forthcoming at the termination of the life estate. But if the Court should merely enjoin him not to remove the property, he might remove himself and the property too, and entirely evade the jurisdiction. With regard to the propriety of compelling the tenant for life to give security in the present case, we concur with' the Chancellors ;°but if any such intention should hereafter appear, the complainant will be at liberty to apply for a ne exeat. The 4th ground is sustained. It was certainly no violation of the duty of a guardian to obtain the judgment of the Court on au instrument, in which his ward had, apparently, so material an interest; and it would be hard and unusual to burden him with costs. By paying costs out of the corpus of the property, they will b.e borne by the tenant for life, and the complainants entitled in remainder, according to their respective interests. This is ordered accordingly, and m other respects the decrees are confirmed.

WM. HARPER.

We concur.

David Johnson, J. Johnston, B. F. Dun-kin.  