
    
      Robert Smith, Executor, and Helena Patterson, vs. J. L. Patterson, Administrator of Samel Patterson, deceased.
    
    A bond, in consideration of marriage, conditioned for the payment of money to the obligor’s intended wife, after his death, is a marriage settlement within the purview of A. A. 1785, and void for not being duly recorded.
    Heard by Dunkin, Ch., whose decree includes a sufficient history of the case.
    “The Act of 1785 provides that every marriage contract, deed or settlement, entered into for securing any part of the estate, real or personal, in this State, of any person or persons whomsoever, shall, within three months after the execution thereof, be duly proved and recorded in the office of the Secretary of State, and in default thereof, such marriage deed, contract or settlement, shall be deemed, and is thereby declared, fraudulent, and all and every part of the estate thereby intended to be secured to such person or persons, shall be subject and liable to the payment and satisfaction of the debts due and owing by such person or persons, in as full and ample a manner, to all intents and purposes whatsoever, as if no such deed, contract or settlement had been ever made or executed.
    “On 2d August, 1836, the defendant’s intestate became bound to Wm. Mason Smith, in trust for the complainant, then Helena Bache, who was described or designated as his intended wife, in the penal sum of $8,000, conditioned for the payment of $4,000, within three months after his decease. The bond was enclosed in a letter directed to Mr. Smith, and which declared the trusts on which the money was to be held. It did not appear that the bond or letter had ever been out of the possession of the obligor prior to his death in January, 1839. The estate of the intestate is insufficient to pay his debts, and the point submitted, is whether this bond is within the operation of the Act of 1785.
    “In Banks vs. Bruen and Wife, (2 Hill C. R. 565,) it is said by the court, “There is some diversity of opinion as to what constitutes a marriage settlement, within the meaning of the Act. Prima facie, the terms obviously import a settlement founded on the consideration of marriage.” It is part of the allegation in the bill, that this bond was given in consideration of the intended marriage between the parties. It is therefore a marriage contract.
    “But it was said, the Act was only intended for such settlements or contracts as were made to secure tangible property, of which the possessor is the ostensible owner, and not for contracts to secure the payment of money. The terms of the Act are general. I think it cannot be doubted that this was a contract on the part of Mr. Patterson, to secure to his intended wife $4,000, to be paid out of his estate, within three months after his decease. It was a contract made in contemplation and in consideration of marriage. The sum of $4,000, was the part of his estate intended to be secured, and by the provisions of the Act, the contract, as to creditors, is fraudulent in law, and the sum intended to be secured is to be applied to the payment of his debts, as if that contract never existed. In the Bank vs. Mitchell, July, 1839, the Court of Errors held that an unrecorded agreement to make a settlement, was so absolute a nullity, when the rights of the creditors were involved, that it would not sustain a post nuptial settlement, made in pursuance of the articles, and duly recorded.
    “The preamble to the Act, and, perhaps, the language of the enacting clause, affords color to the argument of» the complainant. The great mischief was probably that to which the preamble points. It was injurious to the right of creditors, that real or personal estate of which their debtor was in the enjoyment, and in the faith of which he may have been trusted, should be protected by deeds of which they had no notice. But the evil would scarcely be less if, in contemplation of marriage, a man could give a bond to half the value of his estate for the benefit of his family, which could not be demanded during his life time; but would have a general preference over his other debts after his decease. It is hardly an answer, that his bond to a stranger for valuable consideration, is not recorded, and is yet entitled to priority of payment in the administration of his assets. It is not the interest of a bona fide creditor to allow his debt to remain unpaid ; but it is the interest of the debtor’s family, that he and they should not be interrupted in the enjoyment of the property during his lifetime. The great object of the marriage settlement Act, is to prevent injury to creditors, from latent claims which the parties are not interested to enforce. It ap~ pears to the court that this contract is within the terms of the Act, and within the mischief intended to be prevented.
    “It is ordered and decreed that the bill be dismissed.”
    The complainants appealed, on the ground that the bond to William Mastín Smith was not a settlement, and therefore not within the provisions of the Act of 1785.
    
      Petigru S¡ Lesesne, for thé motion. Mazyck, contra.
   Curia, per

Donkin, Ch.

At the hearing of this cause, it was understood to be the object of the parties* to test the validity of the bond, as in a controversy with creditors ; and for this purpose a statement of the debts and assets was submitted, to shew the insolvency of the intestate^ estate. It is thought proper to say thus much, as it might otherwise be vvell doubted whether the legal representative of the party would be permitted to make the question, which has alone been submitted for the judgment of the court. If the bond be regarded as voluntary, or if, taken in connection with the letter to the Justice, in which it was enveloped, the papers be regarded as testamentary, it is scarcely necessary to say that it cannot stand against the' claims of the creditors. If founded tín a valuable consideration, it is on the consideration of marriage. The court agree with the Chancellor that this is a marriage contract. If the terms of the Act of Assembly were less clear and imperative, there might be weight in the argument, that a contract of this character was not intended to be embraced in its provisions. But it seems to the court, that the language is too coihprehensive to' leave room for conjecture as to the probable intention, or permit the application of rules which are provided to aid the judgment in cases of doubtful construction. The" appeal is dismissed.

Harper, Johnson and Johnston, Ch., concurred.  