
    Davidson & Simpson v. Admiral Graves, and Others.
    A settlement of his real estate by a husband on his wife, made prior to, and in contemplation of the marriage, under which settlement she would have been intitled to the enjoyment of the estate, if she survived him, having been declared fraudulent and void as to bis creditors, it was, at the same time, ordered, that a portion of the wife’s fortune, which had been suffered to go into his possession, on the faith of the vacated settlement, should be repaid to her, and that the settled real estate should stand charged with the payment. Held, that she was in-titled to interest on the amount from the death of the husband.
    Slaves purchased by the husband, and included in a settlement on his wife, which settlement had been declared fraudulent and void as to his creditors, ordered to be delivered up by the wife, and to be sold and applied to the payment of creditors, conformably to the principles of the decree vacating the settlement.
    Where a settlement of the husband’s real estate upon his wife is set aside, she is intitled to dower, if she has survived him; and it is not too late to make the claim, after a decree for the sale of the settled estate, for payment of the husband’s creditors: but she takes subject to incumbrances on the estate existing prior to the marriage.
    Dower ordered to be assessed, by allowing the widow one third of the interest for seven years, on the nett value of the whole estate, after payment of prior incumbrances.
    Heard by De Sahssure, Chancellor, at Charleston, May, 1S29.
    The complainants were creditors of Admiral Graves, and of his son, Samuel Colleton Graves; and filed the bill in this case, in 1824, to set aside certain conveyances by Admiral Graves and his wife, to their said son, and also the marriage settlement of the son, executed upon his marriage with Miss M’Pherson. The conveyances to Samuel Colleton Graves, included a very large and valuable real estate, which was the inheritance of his mother : and the marriage settlement comprised this real estate, and all the estate real, and personal, of Samuel Colleton Graves, including three hundred slaves; to the enjoyment of all of which Mrs. Graves, by the terms of the settlement,.would be intitled in the event of her surviving her husband. Miss M’Pherson had a very ample fortune of her own, which was also settled upon her; with the exception of certain stocks, of the value of about $10,000, which were permitted to go into the possession of Mr. Graves, after the marriage, without being protected by any settlement. The cause was heard in January, 1828, by Thompson, Chancellor, who, by his decree, set aside (he conveyances, by Admiral Graves, to his son, and also the settlement made by Samuel Colleton Graves, of his own property, as void against the creditors of himself, and his father. This decree was affirmed by the Court of Appeals, in April, 1828, with some modifications : and by that decree it was ordered, amongst other things, that the real estate of Samuel Colleton Graves, derived from his mother, should stand charged with the repayment of the value of the stocks of his wife, which were suffered to go into his hands without a settlement; to which stocks his wife, who, on his death, had intermarried with Nathaniel G. Cleary, was declared to be in-titled, on the ground, that it was fair to presume that Mr. Graves had been permitted to reduce them into possession, on the faith of the settlement of his own property, which was set aside. See the decree of the Court of Appeals, in Riley’s Equity Cases, 282, et seq.
    
    A sale was ordered to be made by the master, and the accounts were referred to him; and the cause now came up, upon exceptions to his report, which will be sufficiently understood from the decree of the Chancellor.
    Re Saussurk, Ch. The complicated rights of the parties have been settled by the luminous decree of the Court of Appeals, in April, 1828 ; and nothing remains to be done, but to carry that decree into effect. To accomplish that object, a reference to the master was ordered, and he has made a report, to which various exceptions have been filed by the parties interested.
    On the part of Mr. and Mrs. Cleary, and her trustees, it is contended, that the master ought to have reported interest on the amount of the stocks transferred to Samuel Colleton Graves, which had not been included in the marriage settlement of Miss M’Pherson’s own property, on the faith of the large settlement made by Mr. Graves, of what he stated to be his property ; which last settlement, the Court of Appeals has set aside as to the creditors of Samuel Colleton Graves.
    The claim to interest was resisted by the complainants; but it appears to me, that the principle, which led the Court of Appeals to order the payment of the principal amount of the stock, leads also to the conclusion, that interest thereon should be allowed, at least from the death of Mr. Graves. If the deceptive settlement by Mr. Graves, of his own estate, (deceptive from his being so largely in debt that he was not at liberty to make such a settlement,) had not been made, this portion of the fortune of Miss M’Pherson would have been included in the settlement of her own estatc’ wh‘ebj as was said in the argument, is unquestionable, and unquestioned. In that case, on the death of Mr. Graves, it would have survived to her, by the terms of the settlement, and she would have had the use and enjoyment of it. I am, therefore, of opinion (hat she was intitled to interest on the a mount reported, as the value of the stock, at least from his death ; and it is ordered, and decreed, accordingly, to be paid, with the principal, out of the sales of the estate reported, conformably to the decree of the Court of Appeals.
    The next question made by the exceptions, relates to certain slaves, purchased, by Samuel Colleton Graves, from Mrs. Wainwright.
    It is contended, for the complainants, that these slaves, now in the possession of Mrs. Cleary, should be delivered up as part of the estate of Admiral Graves, and liable to his debts ; or at all events, if considered as part of Samuel Colleton Graves’ estate, and included in the settlement, made by him of his own property, they should be delivered up to pay his debts, and those in which he was jointly bound with his father.
    The facts in relation to these Wainwright slaves appear to be as follows: Samuel Colleton Graves purchased them from Mrs. Wainwright, on his own account, and took the bill of sale in his own name. It is alleged, however, that he paid for them with the funds of his father ; and Mr. Robertson testifies that he did pay for them with the proceeds of the sale of the Fairlawn tract, which belonged to his father: and as it does not appear, that he had any distinct estate of his own, it seems to be pretty fully established, that they were so paid for. Whether this state of things ought to induce the Court to order them to be delivered up, would seem, however to be questionable ; for it is not so clear, that the father, or his creditors, could follow these slaves identically. He might stand a creditor of his son, for the amount of his funds received by him, and put to his own use ; but as a creditor without a lien on these slaves, more especially as he delivered them up to the widow, voluntarily, after the death of his son, by the advice of counsel. The Court of Appeals did not decide the particular question now made in relation to the slaves 5 for it was not made distinctly to that Court.
    There is, however, another view, which strikes me as a very strong one. It is this. Allow that these slaves really belonged to Samuel Colleton Graves, and that they were included in the marriage settlement of his property, yet the Court of Appeals has de= eided that this settlement is void as against his creditors; and upon that ground, there was restored to the widow of Mr. Graves, a fund, originally belonging to her, but which had vested in the husband jure mariti. These slaves then really belonged to Mr. Graves, unprotected by the settlement; and therefore are subject to his own debts, as well as to those in which he was bound with his father. The consequence is, that they ought to be delivered up, as the whole subject is now before the Court. It is therefore ordered that the slaves purchased from Mrs. Wainwright, by Samuel Colleton Graves, be delivered up for the benefit of the creditors, with a reasonable allowance for their hire and labor since his death, to be ascertained by the master. The said slaves to be sold, and the proceeds applied to the payment of the creditors, according to the principles of the decree of the Court of Appeals.
    Mrs. Graves, now Mrs. Cleary, finding herself deprived of the benefit of the settlement, made by her husband, of his property, has applied by petition, to be allowed dower in the lands of which her late husband was seized during the coverture. The lands in question are those conveyed to him by his father, and mother. Several objections are set up against this claim.
    The first is, that she comes too late, after the decree of the Court of Appeals, the order for sale, and the appropriation of the funds to the payment of creditors. It does not strike my mind, that she comes too late. Whilst she stood upon the settlement, which included all the lands, it would have been absurd to have made a claim of dower in them; It was not until the decree had avoided the settlement, that it was proper to set up the claim ; and the doctrine is well settled, and supported by the authorities, that where a provision is made for the wife, which fails, she may come in and claim her dower : and she is not too late whilst the fund remains under the control of the Court.
    Other objections are, however, set up, which go against the right of dower altogether. It is contended that the conveyance of the lands by the father and mother to Samuel Colleton Graves, although absolute on its face, was really upon implied trusts, and that the right of dower in his wife cannot attach : and further that the decree of the Court of Appeals having set aside the conveyance as fraudulent and void, no right of dower in the widow of the grantee can arise.
    It is argued, that the deed, of conveyance was absolute on its face. No trusts appear, and if the son chose, afterwards, to make certain limited provisions out of this real estate, under any private understanding, they do not, of themselves, affect the Validity of the conveyance. The nature and extent of such implied trusts, do not clearly appear: as far as appears, in relation to one of them, it seems to have been, in part, a provision for a daughter of Admiral and Mrs. Graves, who had married Baron Yandersmissen, of a very small part ofthe estate previously conveyed to the son Samuel,- and presupposes the validity of that conveyance. It would be very mischievous, fo allow such secret parol understandings to set aside the whole conveyance, and to defeat the just claim of the widow to' dower, under the absolute conveyance, and vested fee simple in her husband. It is her last plank, when defeated of her settlements Besides, it was a conveyance of the mother, in whom the inheritance of the land was, in which inheritance the creditors of the husband, Admiral Graves, had no interest beyond his life, except as far as she chose. It was competent to her to make the conveyance, without regard to the claims of the creditors of her husband ; and I do not, therefore, think that the first objection is well founded.
    With respect to the decree of the Court of Appeals, it does not appear to me, that it was intended to go the length which is contended for by the complainants. According to my reading of the decree there is a reserve, as to the extent, to which the conveyance of the lands to the son is avoided. It, doubtless, struck the clear and acute understanding of the Court, that the conveyance of the mother to her son, of her lands of inheritance, which were not subject to the debts of her husband, made a different case, from that of a father making a voluntary conveyance of his own lands, and thus attempting to withdraw them from the just claims of his creditors. It does appear to me, that it was not the intention of the Court to set aside the conveyance from the mother to the son, so absolutely as to bar the widow of dower; for, besides other reasoning, we find the Court taking the ground, that the land considered as the son’s, was still liable to his own debts, as well as to the debts of his father, in which he was joined. Besides, the decree protects the mortgage to Vandersmissen, by Samuel Colleton Graves which it would not have done, if it had been intended to set aside the conveyance to him, absolutely. Indeed, the decree explicitly says, that the deed should be set aside, “ so far as it was necessary to effect its object.” Unless, therefore, I have misapprehended the decree of the Court of Appeals, I feel bound to say, that the fee was vested in the son, and his widow was, and is, intitled to her dower.
    
      It is, therefore, ordered, and decreed, that it be referred to the master to ascertain the amount which, under all the circumstances, ought to be allowed to the widow, out of the sales, in lieu of dower. On the minor points of the case, I concur with the report, and the same is hereby confirmed, except so far as it is modified by this decree.
    The creditors appealed from so mucii of this decree as related to interest on the stocks, and the claim of dower; and Cleary and wife appealed from the order in relation to the Wain wright slaves.
    Kins, for the creditors.
    Lance, contra.
    
   O’Neall, J.,

delivered the opinion of the Court.

We concur with the Chancellor, that Mrs. Cleary is intitled to interest from the death of her former husband, Samuel Colleton Graves, on the amount of the stocks transferred to him on the faith of the marriage settlement, and which, by the appeal decree, was charged on the lands. And we likewise concur with him in relation to the Wain wright slaves.

We also concur with the Chancellor, that Mrs. Cleary is intitled to dower in the land conveyed by his father and mother to Samuel Colleton Graves, and that the allowance of this claim is not precluded by the former decree. But, notwithstanding, that we think she is intitled to dower, we do not think that she takes it, discharged from the incumbrances existing, actually, or constructively, at the time of the marriage. Her rights, arising from the marriage, cannot be in a greater estate than the estate which her husband then owned. His estate in the land was incumbered at the time of the marriage, with Vandersmissen’s mortgage, Hasell’s mortgage, and with the value of her stock, which has been considered, and allowed, as a charge on the land at the time of the marriage. His real estate, therefore, of which she was dowable, was its nett value, after the payment of these then existing incumbrances.

It is, therefore, ordered, and decreed, that it be referred to the master, to assess the dower of Mrs. Cleary, according to these principles. He will first, out of the proceeds of the sale of the land, satisfy Vandersmissen’s, and Hasell’s mortgages, and the amount of stock, with the interest thereon, charged on the land, and decreed to be paid to Mrs. Cleary ; and upon the residue of the proceeds, he will compute interest for seven years, and allow one third of the amount so ascertained, with interest on it, from the time when the sale of the land was due, for her dower, which he is directed to pay out of the proceeds of the sale of the land. In ot^el resPects» the decree of Chancellor Ee Saussube is affirmed.

Decree modified.  