
    JACKSON:
    APRIL TERM, 1840.
    M’Intosh and Wife vs. Ladd, et als.
    
    Conveyances of real estate by deeds of gift to children are not fraudulent against a wife’s right of dower because not founded upon a valuable consideration. To render them fraudulent and void as against her right of dower there must he an actual specific intent to defraud her in the malting of such conveyances.
    This bill was filed by John M’Intosh and his wife, Elizabeth, against the devisees of Peter Burton, deceased, and his administrator, for dower, and damages for the detention thereof, andfor a distributive share of his personal estate. In 1829 Burton and complainant, Elizabeth, were married in Williamson county, Burton having seven children by a former wife, some estate, and being advanced in life, and the complainant, Elizabeth, having also several children. They entered into a marriage contract, securing to each other the use, enjoyment and power of disposing of their separate estates. One of the daughters of Burton was married in 1812, the second in 1816, the third in 1819, and the fourth in 1824. He had made to each of his daughters at the time of' their respective marriages advancements of portions of real and personal property, and also to his other children at different times. Shortly after the marriage the marriage contract was destroyed with the mutual consent of parties. Burton and wife did not remain long in the county of Williamson. Burton sold the tract of six hundred and forty acres upon which he resided in Williamson for about the sum of four thousand dollars and divided the larger portion of the proceeds amongst his children, and made deeds of gift of other portions of real estate to them, and removed to the county pf Haywood. He there purchased two hundred acres of land and settled upon it. He took with him eleven slaves and some other personal property. In 1834 he died, having made his last will, in which he gave one-third of the two hundred acres of land on which he resided to his wife, a life estate in two slaves, and an absolute title to some articles of household and kitchen furniture, and divided the balance amongst his children. He had no children by his last wife. She dissented from this will. There did not appear to be any intent to defraud the complainant, Elizabeth, of her dower rights in giving the largest portion of his property through a series of years to his children, but seemed to intend to make reasonable provision for his children. It did not appear that she objected to the sale of his real estate in Williamson at the time of the sale and the distribution of the proceeds of the property amongst his children.
    She afterwards intermarried with John MTntosh and filed this bill in the chancery court at Brownsville against the administrator and devisees of Peter Burton, praying a decree for dower of the estate conveyed by deeds of gift to his children after their marriage and for damages for the detention thereof, and for a distributive share of the personal estate. The defendants answered, denying all intent on the part of deceased to defraud the complainant, Elizabeth, and also filed a cross bill alleging that the decedent left a large amount of money which came to her hands, and which had been illegally seized and appropriated by the complainant, Elizabeth. She answered the cross bill and denied the facts therein contained.
    The bill came on to be heard, when the chancellor, being of the opinion that in the disposition of the real estate of' the deceased by deed of gift to his children after his marriage with complainant, Elizabeth, and before his death, there was no actual and specific intent to defraud the said Elizabeth of her dower, but that said disposition was only a reasonable and competent provision for his children proportioned to his estate, refused to decree dower out of the land so conveyed by deed of gift, but directed an account to be taken of what lands Peter Burton died seized, and also an account of the personal estate, &c. Complainants appealed.
    
      M. Brown, for complainant.
    1. The voluntary conveyances made by Peter Burton to his children are void as against the wife’s right of dower, or in other words, the conveyances being voluntary and without consideration are made subject to the wife’s right of dower. By the common law the right of the widow to dower extended to all the lands of which the husband was seized during coverture, and no act of the husband could deprive her of this right. 2 Bl. Com. 129, 130, 132: l' Thomas’ Coke, 476-7: 1 Thomas’ Coke, 567: Combs vs. Young, 4 Yer. Rep. 218, 224-5-6: Park on Dower, 5. By the statute of 1715, ch. 38, sec. 13, the common law right is fully recognized and preserved. Thus the common law remained untouched until the statute of 1784, ch. 29, sec. 8. Its policy, however, can only be considered so far as it bears on the construction that shall be given it. The question then arises what was the object of this statute? Was it designed to break down the ancient and cherished common law right of dower? Was it designed to expose the rights of the wife to the whim, caprice or ill-nature of the husband? Was it designed to authorize the husband to give away his lands, and at discretion to cut off his wife’s right of dower? It is believed the statute was designed for no such purpose. It was for the convenience of the husband when bona fide alienation became necessary. It authorizes him to contract debts and thereby change his lands, or to sell them for a valuable consideration; but even this must be done bona fide; if fraudulent and designed to defeat the wife’s dower it is void by the express language of the statute. If, then, a voluntary gift is made by the husband, does not the right of the wife still hold to the land? By the common law her right attaches at the marriage and always relates to it. The statute of 1784 still regards her claim as a right, and declares all conveyances void which are made with intent to defraud that right, and only author-izes the husband to convey on bona fide sales. If the claim of the wife is a right, as it clearly is, it follows that a voluntary conveyance without consideration is a fraud on that right. The donee has no equity to stand upon. The consideration of love and affection does not place his claim on as high ground as that of the widow. Her claim is older and superior. The common law so regarded it, and the statute has not changed it. Martin and Yerger’s Rep. 329.
    2. As the husband cannot'make a direct conveyance in fraud of his wife’s right of dower, it follows that he cannot indirectly effect the same object by selling the land for a valuable consideration and giving the proceeds to his children or others.
    
      Mr. M’Clanahan, for defendants,
    cited Littleton vs. Little~ ion, 1 Bat. and Dev. 330.
   Reese, J.

delivered the opinion of the court.

The complainant, Elizabeth, was the widow and relict of Peter Burton, and she, having dissented from his last will and testament, filed this bill against his devisees for an assignment of dower, and an account of the annual value or profits thereof from the death of the said Peter, and for a distributive share of his pei’sonal estate. It appears from the bill and cross bill, the answers to both, and from the proofs, that in the month of June, 1830, Peter Burton, then of an advanced age, a widower, and the father of several adult children, intermarried with the complainant, Elizabeth, then a widow of an age also somewhat advanced, and the mother of several adult children by a former marriage. At various periods prior to the intermarriage of Peter Burton and the complainant, Elizabeth, the former, commencing as early as 1812, had made reasonable advancements in real and personal estate to his children upon their marriage; and in 1829, in the lifetime of his former wife, he had settled some of' his younger children, about that time married, upon small tracts of land given to them by parol, but not conveyed till a few months after his last marriage. He then resided in the coun-1y of Williamson upon a tract of land containing six hundred and forty acres, which, a few years after his marriage, he sold for upwards of four thousand dollars, and with a portion of the proceeds made further advancements to his children, and with the balance purchased a tract of land in the county of Gibson of two hundred acres, to which, with his wife he removed, taking with him some eleven slaves and also other personal property with about fifteen hundred dollars. It seems to have been his purpose to have enlarged his farm by the purchase of adjoining lands, but shortly after his removal, to wit, in the summer of 1834, he died, having made his last will and testament, and therein devised and bequeathed to complainant, Elizabeth, dower in the tract of land and two negro men slaves and other personal property, for life. Previously to his intermarriage with complainant he and complainant made and signed a contract in writing, the substance of which was that he, by virtue of the marriage, should have no claim whatever upon the estate of the said Elizabeth, nor she upon his estate. This contract was some months after the marriage dissolved by mutual consent.

The principal contest in this case is, whether the complainant, Elizabeth, shall have dower assigned her in the real estate conveyed by Peter Burton to his children by way of advancement subsequently to his intermarriage with complainant. It is insisted that she is entitled to dower in such real estate by operation of the act of 1784, ch. 29, which declares “that any conveyance made fraudulently to children or otherwise with the intention to defeat the widow of the dower thereby attached shall be held and decreed to be void, and such widow shall be entitled to dower in such lands so fraudulently conveyed as if no conveyance had been made.” Without going into a recital of the proof intended to establish a fraudulent purpose in fact on the part of the husband in making the conveyance referred to, or attempting any argument on the effect of such proof, we deem it sufficient to announce as the result of our investigation the conviction fhat a fraudulent purpose in the conveyance is not established by the testimony against the husband. Nor is an actual fraudulent intention much insisted on in argument by the counsel of complainants. But it is said that a proper construction of the proviso referred to will make void as to the widow’s dower a conveyance from father to child subsequent to the marriage, however bona fide, if such conveyance be voluntary and founded upon considerations meritorious only.

We waive at present all inquiry into the effect of the marriage contract, which, as it was destroyed by mutual consent some months after the marriage, was probably destroyed after the conveyances, or at least it is not shown by the complainants to have been destroyed before the conveyances. Such inquiry might preclude the raising of the question above referred to, and which has been chiefly discussed in this case. Authorities upon the very point are wanting; and as advancements in real estate by the father to the children must have been frequently and constantly occurring without the wife joining in the conveyance, which with us she never does except when owner of lands in her own right, the absence of authority upon the point, under such circumstances, would seem to establish that the opinion not of society only but of the profession in general from the time of the statute to this moment has been against the construction contended for. This, however, it must be conceded, is a persuasive only and not a conclusive argument in favor of the contrary construction. The learned and able judge, indeed, who delivered the opinion of the court in the case of Hughes vs. Shaw, Martin and Yerger, 329, makes an animated argument in favor of the construction of the statute contended for by the complainants, at the close of which, however, he adds, “We forbear to give any decision upon this question in this case; it has not been argued, nor is it essential to decide upon it.” The error of that argument, it seems to us, consists chiefly in construing the general provisions of the statute on the subject of dower as if it had been “that the widow shall be endowed of all lands of which the husband was seized during the coverture, provided however that the husband may during coverture alien any of his lands bona fide, and for a valuable consideration, in which case the lands so aliened shall be exempted from the widow’s dower.” If such had been the provision, the widow’s right would in all cases have existed prima facie, and those claiming against her right must have shown the sale to have been fair and for a valuable con-. sideration. But in the actual provision made by the statute the reverse is the case. Her claim prima facie is limited to the land of which her husband died seized and possessed; and if it be extended beyond that, it is upon the ground stated in the proviso, and the case must be made out by her in proof. Besides, the words “fraudulently and with intention to deprive her of dower” seem not at all to apply to a bona fide advancement of real estate to a child, properly made according to the wants of the child and the condition of the father’s property and family. Of this opinion is the supreme court of North Carolina in the case of Littleton vs. Littleton, 1 Dev. and Bat. 330, in which it is said that the act of 1784, as to dower, and that of 1715, as to creditors and purchasers, differ materially in their terms and in their subject matter, and that conveyances may stand against a widow which could not against creditors and purchasers. “Upon the statute of 1784 the conclusion is more obvious that only fraudulent conveyances are avoided, and not voluntary conveyances, as such. The statute, unlike that of 1715, is altogether silent upon the subject of consideration. The intent spoken of is the actual intent to defraud the widow. Bona fide conveyances, that is to say, such as are not intended to defraud the wife, do not seem to be within the meaning more than within the words of the act; such are sales to which a power is allowed the husband; such too appear to be bona fide gifts, whereby the h usband actually and openly divests himself of his property and the enjoyment of it in his lifetime in favor of children and others; thereby making, according to his circumstances and the situation of his family, a just and reasonable present provision for persons having meritorious claims on him, and with that view, and not with the view to defeat nor for the sake of diminishing the wife’s dower. If this had not been the purpose of the legislature, there certainly would, with respect to the advancements to children in particular, have been a specific provision in the statute,' since, in the .same act, the manner in which they shall be regulated as between the children themselves is expressly pointed out.” Such are the views of the supreme court of North Carolina, a court of at least equal authority with our own upon the construction of this statute. With these views we are satisfied, and we adopt them. The decree of the chancellor must therefore be affirmed.  