
    *Sally Wood v. Robert B. Warden, Administrator of Elisha Wood.
    Where a post-nuptial agreement is made between husband and wife, by which property is set apart for her separate use, the agreement, although void in law, will he sustained in equity, unless the rights of creditors interfere.
    A note executed by the husband to the wife, acknowledging the receipt of $100 at her hands, and promising to allow her six per cent, per annum interest thereon during her life, and if she survives the maker of thd note, to he paid her or her heirs extra of her third, will be construed such an agreement.
    It is not essentially necessary that the consideration of such note should spring from the wife’s property or earnings, to entitle her to come in as a creditor against the estate of her deceased husband.
    This is a bill in chancery, reserved in the county of Hamilton.
    The complainant filed her bill in the commercial court of Cincinnati, on October 27, 1848, setting forth that in the month of August, A. d. 1847, her husband, Elisha Wood, since deceased, received in money, of her private property, the proceeds of her own labor, which he, the said Elisha, had before that time specially appropriated to her as her own, the sum of one hundred dollars; and then and there made and delivered to the said Sally his memorandum in writing to the effect following:
    That he, the said Elisha, had received of the said Sally, his wife, one hundred dollars, to be paid by him to her at six per cent, interest, yearly, as long as she, the said Sally, should live, and if the said Sally should survive him, then the amount named in said memorandum, that is to say, the said sum of one hundred dollars, with interest, should be paid to said Sally beyond her thirds, or the sums allowed to her by law, as the widow of said Elisha :
    That some time in the month of September, A. d. 1847, the said Elisha Wood deceased, leaving the complainant, his widow, surviving him, whereby she became entitled to claim, and doth *now claim, the said sum of one hundred dollars aforesaid as her own property from the estate of her own husband.
    That the decedent’s estate is perfectly solvent, and that the administrator thereof hath, in his hands, assets that may be reduced to possession and converted into money, sufficient to discharge all the claims against said estate, including the debt of said complainant.
    The prayer of the bill is, that Robert B. Warden, as administrator on the estate of Elisha Wood, be decreed to pay complainant the amount of said note and interest. The memorandum in writing, referred to in said bill, is made an exhibit, and is of the tenor following:
    “ Cincinnati, Ohio, August 16, 1847.
    “Elisha Wood received of Sally Wood, his wife. $100. with interest at six per cent, yearly, as long as she lives, and if he dies first, this note is to be paid her or her heirs extra of her thirds.
    “Elisha Wood.”
    The answer of the administrator, filed June 1, 1849, says that he is advised and believes that the said note was given without any proper consideration whatever, legal or equitable.
    That it was obtained from the said Elisha Wood by undue influence and by threats, without any expectation on the part of said deceased that the said Sally would live to claim the benefit thereof, and was rather intended to pacify an unruly wife, than to make provision for a dutiful one.
    That there are no assets in his hands belonging to said estate^ but there is real estate which may be subjected to the payment of any decree that may be rendered herein against him as administrator.
    The complainant offered in evidence the deposition of Louisa Noel, who swears to the execution and delivery of the note, by Elisha Wood to his wife Sally Wood, in her presence.
    This witness says the note in question was given in lieu of a former note of the same kind, said to have been lost. That this note is about the same in meaning and in words with the *one that was lost. Witness had seen the first note and heard it read some two or three years previous to the signing of the last one. Witness occupied rooms up-stairs, in the house in which Mr. and Mrs. Wood lived. Understood Mrs. Wood had earned the money by washing.
    Upon cross-examination, as well as in a second deposition taken by defendant, this witness says the money was loaned to Mr Wood, to pay his assessment for opening Commerce street. The note was given for the §100 thus loaned. The money was earned by taking in washing and selling milk, by Mrs. Sally Wood and two daughters of Elisha Wood by a former wife. Mrs. Wood said the money was earned by herself and these two children ; they worked for her; they all worked together; does not know who collected the money; heard her say that she had the §100; does not know the ages of the girls, nor how much work they did; heard Mr. and Mrs. Wood both say that the money for which the note was given was earned by Mrs. Wood after the marriage.
    The defendant introduced the deposition of Henry Noel, who states that he heard complainant say that she had. gotten this note from Mr. Wood for money that she had lent him. She further said it was given for $100 ; that she and his daughters had earned the money by washing and selling milk.
    No other testimony was offered.
    The commercial court made an order dismissing the bill, from which complainant appeals.
    Storer & Gwtnne, for complainant:
    Though the girls may have assisted somewhat in the work, the wife had the money, and loaned it to her husband. It was recognized by him as hers, and this note was given to insure the repayment to her. Can his design be frustrated ?
    *It is settled in Huber v. Huber’s Adm’rs, 10 Ohio, 371, that the complainant is entitled to a recovery.
    A post-nuptial contract between husband and wife, by which property is set apart for her separate use, although void at law, will be sustained in equity. Garlick v. Strong, 3 Paige, 440; Liles v. Fleming, Dev. Eq. 185.
    Even gifts between husband and wife, without the intervention of trustees, have often been supported in equity. 3 Dessau. 158; Lucas v. Lucas, 1 Atk. 270.
    In Slanning v. Style, 3 P. Williams, 337, the testator permitted his wife to make profit of his butter, eggs, etc., and borrowed £100 —the proceeds thereof. The wife came in as a creditor against her husband’s estate. That case is similar to the present.
    A. N. Riddle, for respondent:
    The money loaned was the property of Elisha Wood. Ho was entitled to the earnings of his wife and daughters by a former marriage; and the same was expended for the joint benefit of both.
    This case is unlike the case in 10 Ohio, 371. In that case, the note given by John Huber to Elizabeth Huber, was for money that came to the wife from the proceeds of her dower estate, belonging to a former husband, and the court decided that in equity, she might set it up against his administrator.
    I claim, for the respondent, that the note given by Elisha Wood to his wife, for earnings made during the marriage with him by her, and his two daughters by a former wife, is void in law and equity. Clancy on Rights of Married Women, 112.
   Spalding, J.

It was decided by this court, in Huber v. Huber’s Adm’rs, 10 Ohio, 371, that where money comes to a wife, in right of a former husband, and the second husband borrows it of her, and gives her a note for it, the note is good ; and after his death she may set it up in equity against his administrators.

*No new rule of equity jurisprudence was established by that decision. It was simply the application of sundry well-established principles to a now and interesting state of facts. In certain cases the wife has always been treated as a creditor to her husband’s estate. She has been recognized in that character in respect to her paraphernalia; as where “ the husband, in his lifetime, being under the necessity of raising money, pledges her jewels, etc,, and dies, leaving personal property more than sufficient to pay his debts. She shall have the aid of his personal estate to redeem her paraphernalia thus pledged.”

So, too, “ where real estate is devised for the payment of debts, and the executor takes tho paraphernalia, on account of a deficiency of assets in the personal funds, to pay the debts, she shall have the same right against the estate, so devised for the payment of debts, to refund to her the real value of her paraphernalia, as a creditor can have who has not paid his debt for the want of assets.” Reeve on Domestic Relations, 38. These benefits result to her, not by virtue of any agreement on the part of the husband, but by mere operation of law.

In another class of cases, where wives have made savings out of certain allowances, given to them by their husbands, for private expenditure during cohabitation, the amount will be decreed to them as against the representative of the husband; and this, too, in the absence of any agreement made for such an allowance before coverture. Clancy’s Husband and Wife, 272, 276.

It was settled at an early period, in England, that where a husband voluntarily allows his wife, after marriage, to make profit of the produce of his farm, her savings should be her own, subject, after the death of her husband, to no claims but those of creditors.

In Slanning v. Style, 3 P. Williams, 337, which has been a leading case on the subject we are now discussing, the chancellor held, that where the husband had borrowed £100 from *his wife, which she bad saved during coverture, from the sale of pigs, poultry, butter, etc., the same should be allowed to her, as a creditor, out of hia assets, although, it was objected that there was no Writing whatsoever, whereby to raise a separate property in the feme covert. The lord chancellor declared, that courts of equity had notice of these separate interests in femes covert, by the agreement of their husbands. That it was a reasonable encouragement of a wife’s frugality, and that such an agreement would be of no'avail, if it were determined by the death of the husband.”

A more general rule, and one that has been too long and too firmly settled to be easily shaken, is this : Where an agreement is made between the husband and wife, after marriage, by which prop■erty is set apart for her separate use, the agreement, although void at law, will be sustained in equity, unless the rights of creditors interfere. 3 Paige’s Ch. 452; 1 Devereaux’s Eq. 187; 3 Dessaussure’s Eq. 15815 Vt. 537.

Let an application of these juánciples be made to the facts in .the case at bar, and how stands it ? The wife of defendant’s intestate, during the existence of coverture, collected the sum of $100 from sales of milk and for labor in washing, performed for persons out of the family by herself and her two step-daughters. This sum her husband borrowed in order to pay his taxes, and delivered to her his agreement in writing, whereby, after acknowledging the receipt of the money at her hands, he stipulated to allow her an interest of six per cent, per annum as long as she lives; and agrees, in case she survives him, that the note shall be paid to her or her heirs, over and above her dower estate. What clearer appropriation of this fund, for the solo and separate use of the wife, could have been made by the husband ?

But it is insisted that the money, when it came into her hands, was not the money of the wife; and herein the case *is claimed to be unlike the one determined in 10 Ohio.

It is true that, in point of fact, the consideration of the note, in Huber v. Huber’s Adm’rs, was money that came to the wife from her first husband’s estate. It came to the hands of Huber as the money of his wife, and hence became his by force of law, as much as if he had acquired it by his own industry.

That case, however, did not turn upon the fact that the wife was the meritorious cause of the acquisition of the money; for that circumstance alone would fall far short of furnishing sufficient cause to justify a court of equity in setting up, as a valid charge upon the estate of the husband, a claim of the wife for money lent and advanced to him during coverture.

It was the ascertainment of the husband’s intention to set apart and appropriate that amount of money for the exclusive benefit of his wife that induced a court of chancery to decree payment of the note from assets in the hands of his administrators.

The judge who pronounced the opinion says : “ A note from a husband to Ms wife is a very unusual thing; and this very circumstance in this case is, in consequence of its uncommonness, a convincing argument that he intended to withdraw the money, of which it was the evidence, from his own control, and give it absolutely to his wife.”

The note, or memorandum in writing, is of no other account in settling the question in equity than to make manifest the agreement of the parties, or, more properly speaking, to show the intention of the husband to appropriate the fund to the use of his-wife.

In the case cited from P. Wms., there was no note or agreement in writing binding the husband or his representatives to rej>ay,to the wife the £100; yet, on proof made that the money was borrowed from her savings, the chancellor decreed that she should, stand as a creditor of the husband’s estate to that extent. Nor was the money borrowed in that case the %noney of the wife. It arose from the sale of the husband’s poultry, etc., made by her, with his consent, and with the understanding that the avails of the trafile should inure to her sole benefit. Nevertheless, the poultry, pigs, etc., were his, and the money realized from the sale thereof was his, to a greater extent, if possible, than the avails of the milk sold and of labor performed over the wash-tub could, be claimed to be the property of defendant’s intestate.

The single circumstance disclosed by the evidence, that the two daughters of Elisha Wood by a former marriage, helped their step-mother to vend the milk and wash the clothes, can not be made to cut much of a figure in this case. At the outside, no stronger claim can be set up for defendant, on this branch of the caso, than that the money earned by the wife and daughters belonged to the husband and father. Let this be conceded as a legal proposition, and still the complainant’s case is made out in equity, if, as we find here, the same money was afterward set apart, and appropriated by the husband to the exclusive use of the wife. If it could be determined that she had been the meritorious cause of acquiring the fund originally, it would only add strength to an equity sufficiently strong without it.

The claim set up in the answer, that the note was obtained from, the said Elisha Wood by undue influcnco and by threats, and was rather intended to pacify an unruly wife, than to make provision for a dutiful one, seems to rest entirely in the imagination of the administrator, or his attorney. There is not a particle of testimony to sustain it. On the contrary, the idea is repudiated by the principal witness in the case, when interrogated by the defendant’s counsel.

A majority of this court are of opinion that the equity of this oase is manifestly with the complainant, and will order and decree that the defendant pay the amount of the note mentioned in the bill, with interest, to complainant, as also the costs of this suit) from assets in his hands to be administered; *and that the same be made a charge upon the lands of the intestate until fully paid. Decree for complainant.

Hitchcock, C. J.,

dissenting. Not concurring in opinion with the majority of the court in this case, but believing that the bill should be dismissed, it is proper for me to state the reasons by which I am influenced in coming to this conclusion. The object of the bill is to enforce the collection, against the estate of Elisha Wood, of a note for one hundred dollars, given by him to his wife, the present complainant, about three months before his death. It is admitted by complainant’s counsel, that this note can. not, at law, be collected, and therefore resort is had to chancery. It appears from the case, that the personal assets of the estate have been exhausted; and if this claim is sustained, the lands descended must be sold to meet the payment.

Whether this claim can be sustained in chancery, must depend upon the circumstances attending the transaction. It appears that Sally Wood was the second wife of Elisha; that during their cohabitation, children of his, by a former marriage, were living with them, especially two daughters, who are named in the deposition.

On August 16, 1847, the note in controversy was executed, and in November following, the maker died. A witness who was present at the execution of the note, understood from conversation between Wood and wife, that there had been a previous note for the like sum, which had been lost; and the witness states that while they were conversing on the subject, Wood told his wife [¡o draw such a note as she liked, and he would sign it. This note was accordingly drawn and signed.

In other conversation with the parties, and especially with the complainant, witness learned that the consideration of this note was as follows: Subsequent to the marriage, and during *the cohabitation of the parties, the complainant had taken in washing, which had been done by herself and the two daughters of Wood by his former marriage, for which she received one hundred dollars, which she loaned to her husband. To one witness she stated that a part of the consideration was milk sold, for which money had been received; that the washing was done by one of the daughters, the ironing by herself, and that another daughter distributed the milk. These were the daughters of Wood, the stepdaughters of the complainant.

As a general rule, contracts between husband and wife are void, both in law and equity. Notes given by the husband to the wife previous to the marriage, and which become due during coverture, are annulled by the marriage; and although such note may remain in the hands of the wife after the death of the husband, can not be enforced against the estate of the husband. Reeve’s Domestic Relations, 86. But where the contract is of that nature that it can not be carried into effect until after the death of the husband, although entered into previous to the marriage, such contract will survive to the wife. If such be the law—if a note given before marriage, but which falls due during coverture, is by the marriage annulled, it would seem strange that a note given by the husband to the wife during coverture, should be held binding upon the husband’s estate after his death. As a general rule, it can not be so held.

But to this general rule I admit there are exceptions. The case of Huber v. Huber’s Adm’rs is one of that character. In that case the complainant had received from the estate of her former husband $100 as her share of the estate, which Huber, the husband, borrowed from her, and gave her his note. This note was enfoi’ced in equity at the suit of the payee against the estate of Huber, after his decease. It will be seen that the consideration of the note was the money of the wife, which was treated by the husband as her separate property, in borrowing the same from her, and giving his note for the payment.

Thef case of Slanning v. Style, 3 P. Williams, 337, was one *in which a widow was permitted to c.ome in ás a creditor* to her husband’s estate, after his decease. In that case, the husband had voluntarily allowed the wife after marriage, for her separate use, to make profit of various articles beyond what was used in the family, and she had accumulated one hundred pounds. This sum she loaned to her husband ; and the court hold, that to the extent of this sum she might come in as a creditor of her husband.

To assimilate the case now before this court to the one last referred to, there should have been evidence to show that Wood had allowed his wife to receive, as her separate property, money for washing and milk. There is no such evidence in the case, unless it is to be presumed from the circumstance of his having executed the note. To my mind, this is not sufficient. Without such previous allowance or agreement, the earnings of the wife must have been the property of the husband; and when he borrowed from-her, he but borrowed that which was his own.

I would not so much object to the decision of the majority of the court, had this money been the avails even of the labor of the wife. But it was not so—at least, but in part. The evidence in the case shows that the washing was done by one step-daughter, the milk distributed by another, and all that was done by the wife was the ironing of the clothes. Now. it does seem to me that it is not in accordance with the principles of equity to take from these step-daughters a part of the inheritance which descended upon them from their ancestor, to pay their step-mother for work which they themselves have performed.

I think the bill should be dismissed.  