
    Lois Ann Palmer, Sole Surviving Heir at Law of Abraham Travis, Deceased, Respondent, v. Leander W. Hallock, as Executor, etc., of Belzora Travis, Deceased, Appellant.
    
      Ante-nuptial agreement — where a wife becomes the absolute owner of a fund, subject to an executory contract on her part to pay axer to her husband any balance Unexpended by her, the fund goes to her creditors on her death.
    
    Abraham Travis and Belzora Hallock entered into a written ante-nuptial agreement whereby, in consideration oí the marriage, Travis agreed on his part to pay to her the sum of §500, and she, onher part, agreed to receive the same as “ her jointure and in lieu and satisfaction of her whole dower in his estate forever; * * * and it is further agreed between the respective parties, that is to say, viz: at the death of Belzora Hallock, the party of the second part, that the remainder of the money, if any then be left, that the said Belzora Hallock, the party of the second part, received from Abraham Travis, the party of the first part, at the making and delivery of the agreement shall be paid back to Abraham' Travis or his heirs. ”
    The §300 was paid and the marriage solemnized. The wife died subsequent to the husband possessed of such $500, but owing debts, which, if paid, would require the use of such §500.
    
      Held, that, under the ante-nuptial agreement, the wife became the absolute owner of the §500 freed from any trust and subject only to an executory contract on her part to pay over any balance, which might remain unexpended, to her husband or his heirs;
    That, it appearing that at the time of her death the whole $500 -was necessary - for the payment of her debts, it should not be considered, that there was any remainder left unexpended by her;
    That, consequently, such §500 belonged to the creditors of the wife and not to the , heirs at law of the husband.
    Appeal by the defendant, Leander W. Hallock, as executor, etc., of Belzora Travis, deceased, from a judgment of the Supreme Court, in favor of the plaintiff,.entered in the office of the clerk of the county of Greene on the 24th day .of ^November, 1903, upon the verdict of a jury rendered by direction of the court after a trial-at the Greene Trial Term.
    Abraham Travis and Belzora Hallock, being about to marry, entered into a written ante-nuptial agreement, under their hands and seals, and bearing date October 27,1859, whereby, in consideration of the marriage, Travis agreed on his part to pay to her the sum of $500, and she, on her part, agreed to receive the same as “her jointure and in lieu and satisfaction of her whole dower in his estate' forever; * * * and it is further agreed between the
    respective parties, that is to say, viz: at the death of Belzora. Halloclc, the party of the second part, that the remainder of the money, if any then be left, that the said Belzora Hallock, the party of the second part, received from Abraham Travis, the party of the first part, at the making and delivery of the agreement shall be paid back to Abraham Travis or his heirs.”
    The $500 was paid and the marriage then solemnized. The parties lived together as husband and wife for many years, and Travis then died. Subsequently, on April 9, 1902, she died, leaving a last will and testament of which this defendant is the executor.
    It appears from the evidence, very clearly, that such $50.0 was invested by said Belzora Travis, and kept invested down to the time of her death, in bond and mortgage, or other securities. At that date it was invested in a bond and mortgage against one Charles D. Hallock for $3,500, but upon which there was then due and owing the sum of $1,000 only. The evidence clearly establishes that she, at the time of her death, understood and intended that such $1,000 included the $500 so paid her under the agreement aforesaid.
    Such bond and mortgage passed into the custody and control of this defendant, as her executor, and he holds it as part of the assets of her estate.
    The defendant shows that the total assets of Mrs. Travis’ estate, including the $1,000 unpaid upon said bond and mortgage, are $1,800, and that $600 of that consists of a judgment upon which execution has been returned unsatisfied, and which probably can never be collected. He also testified that the claims presented against her estate, in addition to the plaintiff’s claim, were $1,400 or thereabouts. Ho other evidence as to the amount of such indebtedness is before us.
    Upon her death; this plaintiff, who is the only heir at law of said Travis, demanded of the defendant payment of the $500 so left by the deceased Mrs. Travis, and such payment was refused. The plaintiff thereupon brought this action to recover such sum, and asks that it be decreed a charge and first lien on Mrs. Travis’ estate. The court below rendered judgment that the defendant held in his hands the sum of $500, which was received by Belzora Hallock under the ante-nuptial agreement, and “ to which specific sum the plaintiff is entitled,” ánd decreed that the defendant pay the plaintiff the full sum thereof, with $27.83 interest accrued thereon from December 6, 1902. Such interest is charged against the defendant personally. Costs are also given against the defendant. From such judgment the defendant appeals to this court.
    A7". A. Galkins, for the appellant.
    
      D. H. Daley, for the respondent.
   Parker, P. J.:

It seems clear that under the ante-nuptial agreement aforesaid, Belzora Hallock became the absolute owner of the $500 which was paid to her by Travis. There is no reservation of that sum, or any part of it, by the terms of the agreement; nor is there any limitatian, by its terms, as to the use to which she must put such money. It was paid to her as the-consideration for her surrender of all dower and marital rights in Travis’ property, and she was under no obligations whatever to refrain from expending it at once, or from applying it to whatever purpose she desired. There was no trust created by such agreement. There was an executory contract on her part that as to such portion of the $500 as should remain unexpended at the time of her death, it should be paid over to said Travis or to his heir; but the right to recover such portion rested solely upon her promise, not upon any limitation of its use, nor upon any trust assumed by her concerning the same. Concede, for the sake of the argument, that as to so much of such $500 as remained unexpended, a cause of action arose against her estate upon such promise, I am at a loss to discover upon what theory Travis, or his heir, can claim preference over her other creditors in the enforcement of such claim.

It is a well-settled rule of equity that “ where the defendant himself has a right -to sell his interest in the trust fund, in anticipation, and to use the proceeds of such sale as he pleases, equity requires that he should appropriate it to the payment of his honest debts; and he must assign such interest to the receiver in a creditor’s suit. The owner of real or personal estate may create an interest in the rents and profits, or the income thereof, under the provisions of the Revised Statutes, in trust for the use or benefit of a third person, whom, from improvidence or-otherwise, -the donor does not think proper to entrust with the absolute disposition and control of his beneficial interest, in the trust property, by anticipation. But neither law nor sound policy will allow an absolute and unconditional right to property to be vested in a person, which he may use and dispose of as he pleases, by anticipation or otherwise, but in relation to which property he may set his creditors at defiance, by means of a mere nominal trust.” (Degraw v. Clason, 11 Paige, 136, 140. See, also, Hallett v. Thompson, 5 id. 583 ; Wetmore v. Truslow, 51 N. Y. 338, 342.)

In no event, therefore, could the parties by any form of agreement which made Mrs. Travis the absolute owner of -such $500, so conti'ol the disposition of any part- of it after her death as to prevent its application to the payment of her debts. If at the time of her death the whole $500 was necessary for the payment of her debts, then it should not be considered that there was any remainder left unexpended by her.

The whole fund having once become absolutely hers, became absolutely subject to the claims of her creditors, and the right which they had to reach it prior to her death followed it in the hands of her executor after her death. In other words, so far as creditors are concerned, such $500 became and was assets of her estate, and her executor was accountable to her creditors for the same.

This conclusion seems to follow from the well-settled rule of equity above quoted, and the judgment rendered herein is clearly in conflict with it. Upon the record before us the question is one presented between the plaintiff and the creditors of Mrs. Travis, deceased. The executor claims that the $500 is needed to' pay Mrs. Travis’ debts, and so far as the evidence discloses it will be so needed. The trial court has decreed, in substance, that such $500 was not assets of Mrs. Travis, but was the property of this plaintiff. Such conclusion was error, and for that reason the judgment must be reversed.

All concurred!

Judgment reversed on law and facts, and new trial granted, with costs to appellant to abide event.  