
    Charlotte H. Heath v. Juriah Heath, Executrix, W. G. Hunt and wife, and others.
    Contribution, by legatees to a child born after the execution of the will and before the testator’s death, decreed. [*101]
    When the husband goes into the Court of Equity to obtain possession of his wife’s ehoses in action, a suitable provision will be made for her and her children. [*104]
    Executrix being in the receipt of the annual profits of an estate which the will directs shall be paid over to the legatees on their coming of age or marriage instead of paying it according to the will, she loaned out the whole amount from time to time to the legatees, and among the rest to the husband of one of them: on the parties being brought into this Court, and the wife insisting on a settlement: — Held, that if the money advanced by the executrix to the husband was intended as a payment of his wife’s share, the executrix will be allowed credit; otherwise, if as a mere loan. Reference ordered on this point. [*I05]
    The wife’s interest in the shares of two deceased children, which could not have been reduced into possession by the husband at the time the executrix advanced to him, is not subject to the payment of such advances. The fact that the husband was not entitled to possession until the termination of a life estate, precludes the possibility that a payment of his wife’s interest therein was intended. [*105]
    Orangeburg.—
    The bill stated that Frederick Heath, the plaintiff’s father, executed, his last will and testament the 16th February, 1801, and died iu 1816, between which periods the plaintiff was born, and therefore no provision was made for her by the will. After giving three negroes to each of his children (except plaintiff) when they attained to twenty-one years, or married, and leaving the balance of his estate to his wife, Juriah Heath, during her natural life, the testator willed and directed as follows : — “ In case of the death of any of the aforesaid my children without lawful issue, I desire that such portions allotted now to them may be taken and considered as part of the residue of my estate, and divided as hereinafter directed. After the decease of my dearly beloved wife, Juriah Heath, my will and desire is, that the residue of my estate shall be equally divided amongst my children hereinbefore named, to them or the survivor or survivors of them. And as it is my desire that an increasing fund should arise for the benefit of my children, I direct my executrix and executors, hereafter mentioned, to have my planting interest carried on, and that the moneys arising from the crops, after deducting what may be deemed necessary house and plantation expenses yearly, that the overplus may be put out to lawful interest, and that such of my children as ,mav want education, I desire that they may be put to school and educated as amply as those of my children in my life-time ; that the expenses thereof to be paid out of the interest arising from such money so put out to interest: And when the children come of lawful age, or marry, my desire is that each may draw an equal portion of said money, to be laid out for them for such purposes, the most advantageous, as my said executrix, and executor deem the most proper and expedient for their interest.” Benjamin Hart and Juriah Heath were appointed executor and executrix, the latter of whom alone assumed the execution of the trust." After testator’s death Wade and Mary, two of his children, died under age and unmarried, ahd their interests under the will continued in the possession of the executrix, as tenant for life. The testator’s other children *have either married, or are of lawful age. The object of the bill was to compel L the other children to contribute to make up a share for the plaintiff, according to their respective interests under the will; and that plaintiff’s interest in the surplus arising from the crops may be ascertained and paid to her, and also that her right to the balance of testator’s estate, in the possession of the executrix for life, might be declared. Juriah Heath, the executrix, admitted by her answer that the testator made a will of the tenor and effect set forth in the bill, and that plaintiff was born after the execution of the will, and before testator’s death, and is unprovided for by it. She says that a considerable sum has been raised from the annual crops, besides what was necessary for plantation expenses, and that she has loaned to each child (except plaintiff) a considerable sum, and took their notes for the same, believing this the most advisable step until a final distribution of the fund could be made, and that she is ready to account. She also admits that Mary and Wade, two of the children, are dead, and that their shares are in her hands as tenant for life, but that she will, under the authority and sanction of the Court, deliver them to her children for division.
    William G-. Hunt and wife, by their answer, admitted that plaintiff was born after the execution of the will, and unprovided for by it, and that Mrs. Hunt received four negroes and some other personal property from the testator in his lifetime ; but that they never received any part of his estate since his death. William Q-. Hunt stated that he had borrowed from the executrix, out of (as he understood) the funds of the estate, about $1500, but these defendants submitted that they could not be called upon to contribute to the plaintiff, until a full account of the executrix’s administration be taken.
    The other defendants, John Kaigler and wife, and Frederick and Francis Heath, filed no answer, and the bill was taken pro confesso against them.
    The Commissioner made a report to January Term, 1831, stating the amount received by each legateee, and the amount in the hands of the executrix, and that she had loaned to her children about $1,988. At the hearing, Chancellor De Saussure decreed, that an average should be made of the whole estate devised and bequeathed to the other children, and the plaintiff’s share paid to her; and the executrix having relin*1 non quisled her interest for life to *the estate of the two deceased children, he ordered their shares to be divided among the surviving children. The Chancellor also decreed that the surplus fund laid out on interest should be divided equally among the surviving children, and that the estate not specifically bequeathed, and not forming part of the surplus from the annual crops, should, on the death of the tenant for life, be divided among the testator’s children, including the plaintiff. In obedience to the decree, the Commissioner, at January Term, 1832, made his report, fixing the share which each legatee should ratably contribute to the plaintiff, and also ascertaining the amount due by the executrix, including the sales of some personal estate, cash on hand at the testator’s death, and the surplus arising from the annual crops, which the Commissioner reported to be $9,269 51, — or each child’s share $1,813 91.
    The defendants, Hunt and wife, excepted to that part of the report which fixes the share to be contributed by each legatee, and Chancellor Johnston referred the case back to the Commissioner, and established principles to govern him in calculating the value of the property, received by the legatees under the will; and he also ordered that a writ of partition should, on application, be issued to divide the shares of the deceased children.
    At January Term, 1834, the Commissioner, conformably to Chancellor Johnston’s directions, reported the amount which each legatee should contribute, and ascertained the amount due by William G. Hunt and wife to be $450, with interest from the 25th March, 1829. It also appeared that the testator, in 1816, left forty-two negroes, which, in January, 1832, had increased to seventy-five; that the amount of money loaned to William G. Hunt by the executrix, on his individual responsibility, with interest to the 10th January, 1832, exceeded the amount which the executrix was indebted to him upwards of $1000. It was proved that the executrix besides raising thirty-three negroes, had realized from the plantation upwards of $10,000 in sixteen years, and it was admitted that William G. Hunt is insolvent. No exceptions were taken to this amended report.
    Mr. Glover, on the part of the executrix, moved for confirmation of the report, and at the same time for an order subjecting the interest of William G. Hunt and wife, in the negroes of the two deceased children, to the payment of the amount due by Hunt and wife to the plaintiff; and also for the balance due by the same to the executrix, Juriah Heath, for money loaned. And that Mrs. Hunt’s interest in her father’s -* estate (subject to these payments) be settled on her and her issue.
    The motion was opposed by Mr. Chappell: 1. As regards the lien to the plaintiff 2. As concerns the lien for Hunt’s debts. 3. As respects the form of the settlement, which, under the circumstances, he insisted should be referred to the Commissioner.
    Chancellor Johnston made the following order in lieu of that moved :
    “ It is ordered, that the amended report of the Commissioner (dated the 10th inst.) be confirmed. It it further ordered, that when the negroes, of which Wade and Mary died possessed, shall be divided, the share that may be allotted to William G.- Hunt, and Elizabeth his wife, shall be subject to the payment of $450, with interest agreeably to said report, which the said William G. Hunt and wife are required by the Commissioner’s report to contribute to Charles H. Heath. And the Commissioner is hereby directed to report the trusts deemed by him most proper for a settlement of Mrs. Hunt’s share. ”
    The executrix, Mrs. Heath, appealed, and uoav moved this Court to enlarge the order so as to subject the interest of Mrs. Hunt to the payment of the amount due to her, as executrix, by William G. Hunt.
    
      Glover, for the appellant.
    
      Chappell, contra.
   O’Neall, J.

The questions to be decided, arise between the co-defendants, Mr. Heath, and Hunt and wife. To a clear perception and a just decision of them, a summary of the facts may be useful. -Mrs. Heath and Mrs. Hunt are the widow and one of the children of Frederick Heath, who, among other things, by his will, directed the annual profits: of his estate to be put to interest as a fund for the education of his' children; and the will directs, “Avhen the children c.ome of lawful age or marry, my will and desire is, that each may draw an equal portion of said money, to be laid out for them for such purposes the most advantageous, as my said executrix and executor deem the most proper and expedient for their use.” The executrix, Jnriah Heath, managed the estate with-great prudence, and realized large annual profits. Instead, however, of paying it out to the children as they came of age, or ^married, r^-irwshe loaned out the whole sum amongst them, and the defendant, L : William G. Hunt, borrowed a part of it, which with the interest noAv amounts, it is said, to near $3000, greatly exceeding Mrs. Hunt’s share of this fund. i

Since the death of the testator, two of his children-and devisees, Wade: and Mary, have died without issue : in such an event, the testator’s will'-' directs that' their parts of his estate should fall into the residuum, which is bequeathed to his widow and executrix, Juriah, for life, and at her death to be equally divided among his surviving children. In this case ' Mrs. Heath has surrendered her life estate in the parts of the said Wade and Mary, which are iioav therefore divisible among the testator’s children.

It is contended on the part of Mrs. Heath, that she is entitled to deduct and retain Mrs. Hunt’s share of the annual profits of the estate, out ‘ of Mr. Hunt’s debt to her for money loaned out of the said fund ; and ' that, for the balance of his debt, she is entitled to a lien on Mrs. Hunt’s share of the parts of Wade and Mary, now divisible. Mrs. Hunt ' opposes these claims, and sets up her equity- to have a suitable provision' made for her and her children, out of this her estate. Her husband, William G. Hunt, it seems, is entirely insolvent.

The case will be considered, first, as to Mrs. Hunt’s share of the annual , profits of the estate; and second, as to her share of Wade and Mary’s parts. Before, however, taking up the separate consideration of each of . these parts of the case, it Avill be well to state some general principles alike applicable to both.

There is no doubt, when the wife has a perfect legal estate in goods and chattels, whether it be in severalty, joint tenancy, in common or in coparcenery, it will vest in the husband jure mariti; but if her interest be a mere chose in action at law, or a mere equity, as where money and other property is in the hands of an executor or a trustee for the use of a feme covert, the husband has no legal right until he reduces them into possession. If he can do this without the aid of a Court of Equity, he will hold them discharged of the rights of his wife; but, if by the decree of the Court of Equity, he is to obtain possession, the wife’s equity to have a suitable provision made for her and her children, will be supported and enforced.

Fkst The question as to the application of Mrs. Hunt’s share of the annual profits of the estate to the extinguishment of the *debt for ' 4 money loaned to Hunt by Mrs. Heath, will depend upon the fact, .whether, when she advanced the money to Hunt, she intended it as a payment. For there can be no doubt that Mrs. Hunt, who is understood to have been of full age before her marriage with Mr. Hunt, could at any time have -claimed the payment of her share before her marriage; and after that -event she and her husband were entitled to receive it at any time when they thought proper to demand it. If the husband alone had received -it, it would have been such a reduction into possession as would hkve bar,red her equity. This part of the case may therefore have a different -result from that which remains tó be considered, if it should appear on the reference that the money loaned to Hunt was intended to be for his wife’s share of this fund. In that event the Commissioner will ascertain the amount due Mrs. Hunt when her husband received the money, and apply her share to the amount then received. But if it appears that the money advanced was not intended for his wife’s share, but was a mere loan for interest, then the question will arise, whether the wife’s equity can be made liable for the debt of the husband ; which will depend upon and be decided by the view which shall be taken of the second part of this case.

Second. Can the share of Mrs. Hunt of the parts of Wade and Mary, be declared liable to the payment of any sum advanced by Mrs. Heath to William Gr. Hunt, out of the profits of the estate? I think not. This is an equitable chose in action, not reducible, into possession by Mr. Hunt at the time he received the money from Mrs. Heath. This precludes the possibility that a payment was then intended. But he could not at any time have reduced it into possession, until by the decree of this Court it is made available; for it was a mere expectancy in remainder among several joint tenants after the death of Mrs. Heath, until she surrendered in this case her life estate, and the Court decreed partition, To permit such an interest to be made liable for the husband’s debt would defeat the wife’s equity. For, whether he be solvent or insolvent, the same result would follow ; his debt would be no provision for the wife. But in equity, he must, whether he be plaintiff or defendant, if he receive his wife’s portion *by the decree of the Court, make an adequate settlement upon her. If the wife’s portion is to be regarded as paid to him in his own debt, he might, if solvent, be compelled to settle the same sum; but if he was insolvent he could not do this, and the wife would be left unprovided for. But the Court would never suffer the wife’s fortune to be applied to the husband’s debt, only where it could regard Mm as a purchaser of it by a previous or a present adequate settlement.

The eases which I have looked into, it seems to me, sustain these views, except the last, which is, I think, a necesary deduction from the preceding.

In Howard and wife v. Moffatt, 2 John. C. R. 206, which was the case of husband and wife, suing for the money of the wife in the hands of her brother, and which she had requested should not be paid over to her husband, the Chancellor said, “ the general rule is, that where the aid of the Court is requisite to enable the husband to take possession of the wife’s property, he must do what is equitable by making a reasonable provision out of it for her maintenance and that of her children, and without that, the aid of the Court will not be afforded him.” If Hunt could not receive his wife’s fortune without making a settlement, it would seem to follow that Mrs. Heath, who can' have no greater rights than he has, must at least consent to and make an adequate settlement before she could claim to have it made liable to her debt.

In Kenny v. Udal & Kenny, 5 John. C. R. 464, which was a bill against the husband and the assignee of husband and wife (when an infant) of the wife’s equity: the Chancellor held, that the assignment was null and void. In that case, at page 413, he said, It is now understood to be settled, that the wife’s equity attaches upon her personal property when it is subject to the jurisdiction of the Court and is the object of the suit, into whosesoever hands it may have come, or in whatever manner it may have been transferred.” In Haviland v. Myers, 6 John. C. R. 21, the Chancellor said, “the wife’s equity, to a suitable provision for the maintenance of herself and children, out of her separate real and personal estate descended or devised to her during coverture, is well established, and would prevail equally against the husband or his assignee, or any sale made 'or lien created by him, even for valuable consideration, or in payment of a just debt; and whether the suit in protection of that equity be instituted by the wife, or by any *other r^i aij person on her behalf.” These, authorities are too clear to admit k of a doubt that the wife’s fortune cannot jure mariti, be decreed in equity to be paid to the husband, his assignee or creditor, until a suitable provision has been made for the wife and her children. In this State, in Durr v. Bowyer, 2 M’C. Ch. R. 312, the same principles were acknowledged and supported. In that case, my brother Johnson, speaking of the wife’s equity, and after having ruled that the Court will not suffer it to be removed out of the jurisdiction until provision is made, says: “the same protection is afforded to the wife in opposition to others claiming through the husband, whether their claims arise by operation of law, as in cases of bankruptcy or insolvency, or under the voluntary assignment of the husband for a valuable consideration.”

In this case, Mrs. Heath claims under Hunt, and as his creditor; but she has not as high claims as she would have were she his assignee by operation of law, or by his own deed. How can it be pretended that she is entitled to make the wife’s fortune liable to a claim against the husband, unaccompanied by even his consent to such a course, when it is clear that even his assignment could not prevail against her rights ?

In Thomas v. Sheppard,.2 M’C. Ch. B.. 36, the Court, upon principles and for reasons which are to my mind clearly erroneous, refused to set up the wife’s equity, yet recognized and acknowledged the rules which I have already stated.

From these views, it is clear that the share of Mrs. Hunt, of the parts of Wade and Mary, is not, and cannot be made, liable to the payment of any sum advanced by Mrs. Heath to Wm. G-. Hunt, out of the annual profits of the estate.

The Chancellor’s decree, directing a settlement of this part of Mrs. Hunt’s equity, and referring it to the Commissioner to report the proper trusts for a settlement thereof, is affirmed. It is also ordered and decreed, that the Commissioner inquire and report whether the executrix, Mrs. Heath, intended, and Mr. Hunt accepted the money loaned to him, as an indirect payment of Mrs. Hunt’s share of the annual profits of the estate; if so, that her share be applied in extinguishment of the sum so advanced at the time advanced ; but if not, that he report the proper trusts of a settlement of her share of the annual profits.

Butler, J., (sitting for Harper, J., who was absent) concurred.

Johnson, J., dissented.  