
    *Payne & als. v. Hutcheson & als.
    January Term, 1880,
    Richmond.
    Absent, Moncure, P.
    I. In March, 1862, H sells the farm on which he lives for $22,500, a Confederate contract. His wife refuses to join in the deed, and he proposes to her to buy land and build on it, and have it conveyed in trust for her and her children; and upon that consideration she does execute the deed. El does buy the land for $3,200, and builds on it; and they live on it and it is recognized as hers; but the deed to the trustee is not made until April, 1867. At the time of the contract H is not indebted seriously, and these debts are paid oil before April, 1867. In April, 1867, H qualifies as administrator of D’s estate and wastes it, and dies in 1871 insolvent. Upon bill by the distributees of D to set aside the deed — FIei/d:
    1. Deed from Husband to Wife-“Vn!lillty against Husband’s Creditors. — There having been no fraud in the arrangement between IT and his wife, the contract between them is valid, and though the deed to the trustee was not made until April, 1867, the title of the wife is good against creditors of H; they having become such since the date of the agreement between H and his wife in 1862.
    
      2. Same — Value of Contiug'ent Rigrlit of Dower. — At the time of the agreement in 1862, H being forty years of age and his wife thirty-two, according to the tables of mortality the land settled on his wife was at that time in excess of the value of her contingent right of dower in the farm sold; but H having died before the suit was brought to set aside the deed, it is not in excess of her right of dower in the farm sold by H, after his death; and looking at all the facts in the case, the settlement is not more than a just equivalent for the interest relinquished by the wife.
    *This was an appeal from a decree of the chancery court of the city of Richmond made on the 18th of April, 1876, in a suit brought in 1871 by Virginia Payne and others, creditors of John A. Hutcheson, deceased, against the administrator of said Hutcheson, and his widow and children. The only part of' the case brought up to this court refers to the charge by the complainants that a deed executed by William Winkler’s executrix to R. A. Patterson, in trust for Mrs. Hutcheson and her children, was fraudulent and void as to the creditors of John A. Hutcheson. The facts are as follows:
    On the 27th of March, 1862, John A. Hutcheson sold a farm pn which he lived, called Windsor, a few miles from Richmond, for $22,510 — a Confederate contract. Mrs. Hutcheson was not informed of the sale until after it was made, and when she heard of it was very much dissatisfied, and refused to join in the deed. Hutcheson thereupon proposed to buy a piece of land lying near to Windsor, owned by William Winkler, and to build upon it, and have it conveyed in trust for her and her children; and on this .consideration Mrs. 'Hutcheson consented to execute the deed for the conveyance of Windsor to the purchaser. Accordingly Hutcheson did purchase of William Winkler forty acres of land, at the price of $3,200; of which $300 was to be paid in cash, and the balance in three years, with five per cent, interest. The dates of this agreement and of her acknowledgment of the deed are the same, viz: April 3d, 1862.
    Winkler died in 1865, and his executrix seems to have filed a bill against Hutcheson to enforce this agreement; and in that suit it appeared that Hutcheson had paid to or for Winkler, in his lifetime, the whole of the purchase money, except $32.83; and by deed bearing date the 1st of November, 1867, Winkler’s executrix conveyed the land to R. A. Patterson, in trust for Mrs. Hutcheson and her children.
    *Soon after the purchase of the land from Winkler, Hutcheson built upon it, and resided upon it until his death, which occurred in 1871; and during all this time the property was spoken of and treated as purchased under the said agreement between Hutcheson and his wife.
    At the time this purchase was made, Hutcheson was the owner of a considerable property, an active man of business, and owed little in comparison to the value of his property. But in April, 1867, he qualified as executor of Thomas S. Dicken, deceased, and seems to have wasted the estate; and after his death his estate proved to be insufficient to pay his debts.
    In April, 1862, Hutcheson was forty years of age, and Mrs. Hutcheson was thirty-two, and according to the tables, her contingent right of dower in Windsor at the time of the sale, in March, 1862, was but $816.
    The court below dismissed the bill, so far as it sought to subject this -property to the payment of the debts of Hutcheson, and the plaintiffs obtained an appeal from one of judges of this court.
    F. M. Conner, for the appellants.
    Cannon & Courtney, for the appellees.
   STAPLES, J.,

delivered the opinion of the court.

This is an appeal from a decree of the chancery court of Richmond. The evidence satisfactorily establishes that John A. Hutcheson, in the month of March, 1862, sold a tract of land near the city of Richmond, known as Windsor, for the sum of $22,570 in Confederate money; that his wife, Mrs. Emily T. Hutcheson, when she was informed of the sale, was greatly disturbed and dissatisfied with it, and peremptorily refused to relinquish her contingent dower interest therein. After repeated consultations *on the subject, Mr. Hutcheson agreed that he would purchase another tract, and settle it on his wife, if she would unite with him in the deed of conveyance to the purchaser of the Windsor farm. With this understanding Mrs. Hutcheson executed the deed, and relinquished her dower interest in the Windsor farm. Shortly afterwards— not later than the 3d of April, 1862 — Mr. Hutcheson accordingly purchased what is known in the record as the Winkler farm, containing about forty acres, at the price of $3,200, Confederate money. There is good reason to believe that Mrs. Hutcheson did not sign the deed for the Windsor place until her husband had actually purchased the Winkler land; nor is there a shadow of doubt but that this latter purchase was made for the purpose of carrying out in good faith the agreement between Mr. and Mrs. Hutcheson. No deed was, however, executed till November, 1867, when Winkler’s executrix conveyed the property to a trustee for the benefit of Mrs. Hutcheson and her children.

The delay in executing the deed grew out of causes connected with the war and certain litigation which need not be explained here, as it is not material to the present enquiry.

After the purchase, however, Mrs. Hutcheson was recognized as the owner, the property was understood in the community to be hers, and in due time it would be secured to her and her children. These facts are fully established by the testimony of witnesses.

That such agreements between husband and wife, when executed, will be sustained by courts of equity, or, if not executed, will be specifically enforced, is now will settled. It is only necessary to refer to Davis’ widow v. Davis’ creditors, 25 Gratt. 587; Burwell’s ex’or v. Lumsden, 24 Gratt. 443, and the authorities there cited, for a full discussion of the principles involved in this class of cases.

*The next point of enquiry is whether the settlement is either fraudulent or excessive. There is not the slightest proof of fraud in the transaction. On the contrary, all the circumstances tend to repel any such idea.

If Mr. Hutcheson owed any debts at the time, they were very small compared with the value of his estate, and they have long since been paid off.

It seems, however, that Mr. Hutcheson qualified in April, 1867, as the administrator of Thomas S. Dickins, and entered into bond in the penalty of $13,000 for the faithful discharge of his duties. He wasted or mismanaged the estate, and his liability thus incurred is the foundation of this suit by the legatees to impeach the settlement. It is very true that this liability relates to the time of the qualification as executor, which was anterior to the execution of the deed to Mrs. Hutcheson’s trustee, but the agreement to make the settlement was entered into in 1862, nearly five years before Mr. Hutcheson’s qualification as executor, and.before any liability had occurred from the administration of the estate. The appellants are therefore subsequent creditors, and as such, in the absence of actual fraud, occupy no higher ground than their debtors. The equity of the appellee, Mrs. Hutcheson, is as strong against them as against her husband.

If, therefore, the settlement should be regarded as voluntary or excessive, it would still be valid as against the appellants.

But discarding this view entirely, let us enquire whether the settlement is in fact excessive. And here it may be proper to say the court will not interfere with the settlement unless it plainly appears that the property conveyed to the wife greatly exceeds the value of the dower interest. As was said in Burwell’s ex’or v. Lumsden et als., it is extremely difficult to determine, with anything like accuracy, the value of the wife’s contingent right of dower, the husband *being still alive. No fixed rule can be laid down on the subject. The most that can be said is. that in the absence of fraud, the settlement will not be disturbed unless it plainly appears to be grossly excessive.

In the present case, according to the report of the commissioner, if we go back to 1862, and make a conjectural estimate of the wife’s contingent dower interest, founded upon the tables of mortality, it would seem that the settlement is excessive. But it appears that Mr. Hutcheson died in 1871, and if we look to the actual value of the dower as now appears after the death of the husband, Mrs. Hutcheson has not received more than a just equivalent for what she relinquished. It may be admitted that when the suit is brought to impeach the settlement while the husband is alive, resort must of necessity be had to the tables of mortality to ascertain the value of the contingent right of dower after the death of the husband. This rule, in many cases, could not be adopted with safety after the death of the husband, or with justice to all parties. The calculation of the chances of life must be made, not only with reference to the wife, but the husband also; his health, peculiarities of constitution, and other attending circumstances.

Without a full understanding of these matters, no commissioner can fix a reliable estimate of the husband’s expectancy of life; no court could safely pronounce a .settlement excessive upon any calculations made in the absence of such data.

An estimate of the value of the dower interest in 1862, made after his death in 1871, without reference to the circumstances affecting his expectancy of life, must of necessity be unreliable. The delay of the appellants, in instituting their suit, renders it necessary and proper that the court should look at all the facts as they existed before and since the death of Mr. Hutcheson, in order to form a just estimate of the settlement.

*In the fight of these facts, it is manifest that the wife has hot received more than a just equivalent for the interest relinquished by her. No injustice has been done the creditors. The appellants certainly have no just cause for complaint. We are therefore of opinion that the decree of the chancery court is correct, and should be affirmed.

Decree affirmed.  