
    Susannah Bryan by her next friend v. Henry Bryan & John Sellers adm’r. of Josiah & Easter Blackman.
    From Johnston.
    Where land -was sold for partition under the act of 18IS, and thé share of a feme covert paid to her husband, a Court of Equity will deexee heir an indemnity against him.
    Under such a sale, the share of a minor, not being vested according to the act, a Court cf Equity will follow the property, and decree it to an heir" against the administrator.
    Á feme covert being thus entitled, it was held that she could, by her next friend, maintain an adversary suit against the admitíi trator and her husband, and that the fund was not liable for the debts of th* latter, either to the administrator or to the intestate.
    In this State, no settlement being made on the marriage, the wife ha* no equity against her husband, he being insolvent,, for a provision out of her choses accruing during the coverture.
    The allegations of the hill were, that the Plaintiff married the Defendant Bryan, in the year 1816 ; that she brought him a large property in slaves and money; that after the marriage, real property descended upon t-he Plaintiff as one of the heirs of her mother, which was sold under an order of the Court of Equity for the county of Johnston, for the purpose of partition ; that the Plaintiff’s share of the proceeds was received by the Defendant Bryan, her husband, who had appropriated it to his own use. That no settlement had ever been made upon the Plaintiff by her husband, who had become entirely insolvent. That Josiah and Easter Blackman, a brother and sister of the Plaintiff, had recently died intestate, and within age, leaving the Plaintiff and three others their next of kin and heirs at law. That the property of Josiah and Easier consisted of their respective shares of the real estate, sold under the order above mentioned, and a balance of cash due by their guardian ;juul that admit-nistration upon the estates of Josiah and Easter had been committed to the Defendant Sellers, who had received their portion of the proceeds of the real estate, as if it was personalty.
    The prayer of the bill was for general relief, and that the Defendant Sellers might be enjoined from paying over the surplus in his hands to the Defendant Bryan, and that if might be secured according to the settled course of the Court, for the sole and separate use of the Plaintiff.
    The answer of Sellers distinctly admitted all the above facts; bu.t averred first, that the Defendant Bryan was the guardian of his intestates, and owed their estates a large balance, for the recovery of which, he being insolvent, proceedings had been instituted against his sureties. Secondly, that Bryan owed him, Sellers, individually, and -he contended that the residue in his hands, claimed by the Plaintiff, was subject to the satisfaction of one or both of both of these debts.
    The answer of Bryan was not read at the hearing, and did not at all v_ary the case.
    
      
      .Devereux, for the Plaintiff.
    1.The wife is clearly entitled to the proceeds of the real estate. By the express, provisions of our law, this descends as realty: over this therefore, the husband has no control. (Jet of 1813, Hero. c. 847.) Being thus entitled, and having no mode pointed out by law whereby she can avail herself of this right, this Court will aid her, and secure it to her separate use. (Wynne & wife v. Tunsial, ante 23.)
    2. The wife has, in this Court, a well settled equity against her husband, for a separate maintenance out of her dioses in action, particularly when the husband is insolvent. It is recognized as existing against the husband personally, and to deny her the privilege by her-next friend, of enforcing this equity, is to give her a right, and deprive her of a remedy.
    3. The debt which the husband owes to Sellers, docs not affect the equity of the wife; neither is it affected by the fact that he owes the estates of the deceased brother and sister. (Elibank v. Montolieu, 5 Ves. 737.— Carr v, Taylor, 10 Ves. 574.) This follows as a necessary consequence from the fact, that the equity of the wife cannot be affected by the assignment of the husband. The same authorities are full to the point, that the wife may, by her next friend, institute an adversary suit against her husband.
    •1. It appears from the pleadings, that the husband owes a legal debt to the wife — he having received and converted to his use her share of the proceeds arising from the sale of real estate descended from her mother. If all the other grounds upon which her case is founded, fail, this must avail her. It is admitted as a general rule, that this Court will not entertain a bill seeking to subject the debts of another to the satisfaction of his creditors, until the claim has been established at law. Bulas the law gives the Plaintiff in the present case no means of esta-Wishing her demand, this rule must be dispensed with.
    
      Badger, for the Defendant Sellers.
    
    — It is admitted, that in England, the claim of the Plaintiff would be irresistible, and that she might there assert it in the manner in which it is now sought to be enforced.
    1. But this equity of the wife, is founded upon the very artificial state of society existing in England. There is nothing similar to it in our country. It is repugnant to the genius of our institutions, and to the manners and habits of our people. It tends to create a distinct- interest between husband and wife, which is destructive of the end of the marriage state, as to property. This view of the case is strengthened by the fact, that this is the first attempt to enforce this equity in our Courts, although they have now been established nearly a century, and it is a principle which is familiar to the whole profession.
    2. This rule of the English Courts of Equity ought not to be adopted with us, because our statute of distributions gives the wife an indefeasible interest in the personal estate of the husband. It is, in England, founded upon th,e notion, that it is hard, unjust, and contrary to natural equity, to permit the property of the wife to swell a fund, from which the caprice of the husband may cut her off. With us, nothing but the insolvency of the husband can prevent his wife from receiving a share of his estate. The law makes her equally the partaker of his prosperity and of his adversity.
    S. As to the claim of the Plaintiff as a creditor of her husband, so far as respects the receipt of her real assets j it can only be redressed by an application to the Court under wlios 5 order the land was sold, and by a motion in the cause where the sale was ordered, to secure toher, her share. It does not form a ground for a distinct suit in this Court.
    
      
      Devereux, in reply.
    — The manners and customs of our country, as well as our laws, being derived from England, it is fair to presume, that tit ose principles which have been sanctioned by the experience of ages there» will be found applicable to us ; especially when we consider the great and increasing intercourse between the two countries, and that we are pursuing the same career in trade, and the acquisition of wealth. This principle of the English Court of Equity has been adopted in several of the States. Howard v. Mol fait (2 John. Ch. It. 206) Glenn v. Fisher (6 do. S3) Dumand v. M’Gee (4 do. S18) ICenny v. Udall (5 do. 464) Uaviland v. Myers (q do. 225) Uaviland v. Bloom (6 do. 25 & 178) Ex parte Beresford (l Dessaus Ch. Bep. 263).
    The fact, that by our law, the wife has a certain interest in the personal property of the husband, canmqi affect her. Our statute is but little more than a copy ol the customs of the city of London, and the province on york, yet in all the English books, no case can bo found, exempting the husbands bound by those customs, from the rule contended for. Our act of 1784 (Rev. c. 204, s. 8) gives the wife dower only in the lands of which the,husband died seised — whereas the common law gave her much more extensive rights; It may be doubted whether the wife is better provide!!, for under our laws, than under those of England.
   Taylor, Chief-Justice.

— This is a bill filed by a married woman against her husband, and the administrator of her deceased brother and sister, seeking to enjoin the latter from paying over to her husband the Complainant’s right to distributive shares which have been received by the administrator; and praying, in consideration of her having brought a considerable fortune to her husband, who is now insolvent, that the said shares may be settled to the separate use of herself and children, and secured from the claims of her husband and his creditors.

Part of the sum claimed by the Complainant, is derived from the sale of the real estate of her deceased brother and sister, who were minors at their respective deaths, which sale was made for the purpose of partition, but the Court of Equity directing the partition, omitted to settle the proceeds, so as to secure them to their real representatives. The residue of the sum claimed by the Complaimtrft, is the produce of the personal estate.

As the sum raised by the sale of the real estate is considered as land, and is payable to those who would have been entitled to the inheritance, lam of opinion that the wife has an equity for a separate settlement of that sum upon her,’ and although the act makes it the duty of the Court ordering the partition to secure it to the real representatives, yet the right of the wife cannot be prcju-I-diced by the omission. If there was any doubt of the fact, the Court ought not to proceed without further en-quiry, but it is distinctly admitted by the answer. This bill therefere, as to this part of it, may be considered as a bill to carry the former decree into execution; in which case, the Court will vary the decree where the mistake is evident, (Mitford 75) and will also correct it on motion. Newhouse v. Mitford (12 Ves. 456).

With respect to the claim of the administrator to retain the sum due him, out of the money thus accruing to the wife, I think it cannot be supported. The administrator is trustee for the next of kin, of whom the Complainant is one. As she has a clear equity against her husband, as to this money, that must operate to bar any right of retainer he can set up to the property of which lie became administrator ; and in Carr v. Taylor (10. Ves. 574) it was decided, that altough the husband was indebted to the estate of the person under whom the wife claimed the property, yet the administratrix of such person could not set. off the debt against the wife’s title by survivorship to the fund ; for the property being a share of a residue, the Court said it could not be sued for but in the joint names of husband and wife, and that if he had died without reducing it into possession, it . , , „ would have survived to her, and consequently free irom the husband’s debts.

The Complainant’s claim to the produce of the personal estate, cannot I think be supported. When a settlement has been made on the marriage, but an inadequate one, and property accrues to the wife afterwards, in the nature of an equitable right, the Court will sustain a similar claim in behalf of the wife against the husband» and in many instances against creditors. The equitable right which a married woman has, in a Court of Equity» to a provision out of her own fortune, before the husband reduces it into possession, stands upon the peculiar doctrine of the British Courts of Equity, is almost always connected with the enquiry as to settlement, and is the result of a state of society highly artificial.

But even there it is uniformly held, that where the husband can come at the estate of his wife without the aid of a Court of Equity, the Court cannot interfere. Our law has made an alteration in favor of the widow, with respect to personal property, so material as to render questionable that equity for a settlement as against her husband, which is so well settled in the British Courts-I will not deny, that there may be cases where an application of this kind may be proper here, as where the husband will not maintain his wife, and is likely to possess himself of a legacy or distributive share coming to her. But where they live together, and make a joint ef* fort for the maintenance of the children, I should doubt the propriety of extending further tiie notion of separate interest. It may be a hardship for a married woman who brings a fortune to her husband, to find herself and her children reduced to poverty; but she knew when sho married him, that the law gave him an absolute property in all her personal cstate-capable of immediate possession» and in all she should afterwards acquire, if reduced by him into possession during coverture. The hardship might have been guarded against by a settlement, and the not making one, is an evidence that she agreed to share his fortune, be it prosperous or adverse.

The wives and children of his creditors may come to poverty by not receiving their debts, contracted upon the faith of property apparently belonging to him.

I am unapprized of any decision in this State, extending the practice further than requiring the husband to make a reasonable provision for his wife, where the aid of this Court is necessary to enable him to take possession of her property ; and exacting the same provision from his legal representatives or assignees, where they are obliged to come here to establish a claim which accrued to the husband in right of his wife.'

Per Curiam.

Direct an account of the assets of Install and Easter Blackman,and directs the Clerk to distinguish the amount of real assets which have come to the hands of Sellers. Direct also an account of the proceeds of the real estate of the Plaintiff, which came to the hands of the Defendant Bryan, and retain the cause for further directions.  