Wood v. Warden, Adm'r, etc.

of time, and that is in fact a stale demand, which should not be enforced in a court of equity. The land was sold in 1834, and at that time most of the complainants were within age. The bill was filed in 1848-fourteen years after the sale. Here was a lapse of fourteen years after the sale. But when it is considered that some of the heirs did not arrive at full age until shortly before the filing of the bill, here has not been that lapse of time which would induce the court to withhold relief.

But a question arises as to the relief which shall be granted. The land has been sold, and, for aught we know, to a bona fide purchaser, without notice, and for a good and valuable consideration. That purchaser who, from aught that appears, now holds the legal title, is not before the court. Under these circumstances no decree can be made for the land. But as the complainants can not have this relief, we think they are entitled to compensation; and in our opinion, the proper rule of compensation will be to charge the defendant with the value of the land at the time of sale, and credit him with the amount by him paid for it, and which amount was appropriated in part satisfaction of a judgment against the estate.

We take the appraisal as evidence of the value, believing that appraisal to have been made by good and judicious men. Had the defendant sold the land, as it then was, at an advanced price, he might with propriety have been charged accordingly.

The land was appraised at $450; it was sold for $225. The difference is $225, for which, with interest from October 18, 1834, the complainants may take a decree. The defendant will also be

charged with the costs. Decree accordingly.

*SALLY WOOD v. ROBERT B. WARDEN, ADMINISTRATOR OF [518 ELISHA WOOD.

Where a post-nuptial agreement is made between husband and wife, by which property is set apart for her separate use, the agreement, although void in law, will be sustained in equity, unless the rights of creditors interfere.

A note executed by the husband to the wife, acknowledging the receipt of $100 at her hands, and promising to allow her six per cent. per annum

Wood v. Warden, Adm'r, etc.

interest thereon during her life, and if she survives the maker of the note, to be paid her or her heirs extra of her third, will be construed such an agreement.

It is not essentially necessary that the consideration of such note should spring from the wife's property or earnings, to entitle her to come in as a creditor against the estate of her deceased husband.

THIS is a bill in chancery, reserved in the county of Hamilton. The complainant filed her bill in the commercial court of Cincinnati, on October 27, 1848, setting forth that in the month of August, A. D. 1847, her husband, Elisha Wood, since deceased, received in money, of her private property, the proceeds of her own labor, which he, the said Elisha, had before that time specially appropriated to her as her own, the sum of one hundred dollars; and then and there made and delivered to the said Sally his memorandum in writing to the effect following:

That he, the said Elisha, had received of the said Sally, his wife, one hundred dollars, to be paid by him to her at six per cent. interest, yearly, as long as she, the said Sally, should live, and if the said Sally should survive him, then the amount named in said memorandum, that is to say, the said sum of one hundred dollars, with interest, should be paid to said Sally beyond her thirds, or the sums allowed to her by law, as the widow of said Elisha:

That some time in the month of September, A. D. 1847, the said Elisha Wood deceased, leaving the complainant, his widow, surviving him, whereby she became entitled to claim, and doth 519] *now claim, the said sum of one hundred dollars aforesaid as her own property from the estate of her own husband.

That the decedent's estate is perfectly solvent, and that the administrator thereof hath, in his hands, assets that may be reduced to possession and converted into money, sufficient to discharge all the claims against said estate, including the debt of said. complainant.

The prayer of the bill is, that Robert B. Warden, as administrator on the estate of Elisha Wood, be decreed to pay complainant the amount of said note and interest. The memorandum in writing, referred to in said bill, is made an exhibit, and is of the tenor following:

"CINCINNATI, OHIO, August 16, 1847. "Elisha Wood received of Sally Wood, his wife. $100. with in

Wood v. Warden, Adm'r, etc.

terest at six per cent. yearly, as long as she lives, and if he dies first, this note is to be paid her or her heirs extra of her thirds. "ELISHA WOOD."

The answer of the administrator, filed June 1, 1849, says that he is advised and believes that the said note was given without any proper consideration whatever, legal or equitable.

That it was obtained from the said Elisha Wood by undue influence and by threats, without any expectation on the part of said deceased that the said Sally would live to claim the benefit thereof, and was rather intended to pacify an unruly wife, than to make provision for a dutiful one.

That there are no assets in his hands belonging to said estate, but there is real estate which may be subjected to the payment of any decree that may be rendered herein against him as administrator.

The complainant offered in evidence the deposition of Louisa Noel, who swears to the execution and delivery of the note, by Elisha Wood to his wife Sally Wood, in her presence.

This witness says the note in question was given in lieu of a former note of the same kind, said to have been lost. That this note is about the same in meaning and in words with the *one that was lost. Witness had seen the first note and heard [520 it read some two or three years previous to the signing of the last one. Witness occupied rooms up-stairs, in the house in which Mr. and Mrs. Wood lived. Understood Mrs. Wood had earned the money by washing.

Upon cross-examination, as well as in a second deposition taken by defendant, this witness says the money was loaned to Mr Wood, to pay his assessment for opening Commerce street. The note was given for the $100 thus loaned. The money was earned by taking in washing and selling milk, by Mrs. Sally Wood and two daughters of Elisha Wood by a former wife. Mrs. Wood said the money was earned by herself and these two children; they worked for her; they all worked together; does not know who collected. the money; heard her say that she had the $100; does not know the ages of the girls, nor how much work they did; heard Mr. and Mrs. Wood both say that the money for which the note was given was earned by Mrs. Wood after the marriage.

The defendant introduced the deposition of Henry Noel, who

Wood v. Warden, Adm'r, etc.

states that he heard complainant say that she had gotten this note from Mr. Wood for money that she had lent him. She further said it was given for $100; that she and his daughters had earned the money by washing and selling milk.

No other testimony was offered.

The commercial court made an order dismissing the bill, from which complainant appeals.

STORER & GWYNNE, for complainant:

Though the girls may have assisted somewhat in the work, the wife had the money, and loaned it to her husband. It was recognized by him as hers, and this note was given to insure the repayment to her. Can his design be frustrated?

521] *It is settled in Huber v. Huber's Adm'rs, 10 Ohio, 371, that the complainant is entitled to a recovery.

A post-nuptial contract between husband and wife, by which property is set apart for her separate use, although void at law, will be sustained in equity. Garlick v. Strong, 3 Paige, 440; Liles v. Fleming, Dev. Eq. 185.

Even gifts between husband and wife, without the intervention of trustees, have often been supported in equity. 3 Dessau. 158; Lucas v. Lucas, 1 Atk. 270.

In Slanning v. Style, 3 P. Williams, 337, the testator permitted his wife to make profit of his butter, eggs, etc., and borrowed £100 -the proceeds thereof. The wife came in as a creditor against her husband's estate. That case is similar to the present.

A. N. RIDDLE, for respondent:

The money loaned was the property of Elisha Wood. He was entitled to the earnings of his wife and daughters by a former marriage; and the same was expended for the joint benefit of both.

This case is unlike the case in 10 Ohio, 371. In that case, the note given by John Huber to Elizabeth Huber, was for that money came to the wife from the proceeds of her dower estate, belonging to a former husband, and the court decided that in equity, she might set it up against his administrator.

I claim, for the respondent, that the note given by Elisha Wood to his wife, for earnings made during the marriage with him by her, and his two daughters by a former wife, is void in law and equity. Clancy on Rights of Married Women, 112.

Wood v. Warden, Adm'r, etc.

SPALDING, J. It was decided by this court, in Huber v. Huber's Adm'rs, 10 Ohio, 371, that where money comes to a wife, in right of a former husband, and the second husband borrows it of her, and gives her a note for it, the note is good; and after his death she may set it up in equity against his administrators.

*No new rule of equity jurisprudence was established by [522 that decision. It was simply the application of sundry well-established principles to a new and interesting state of facts. In certain cases the wife has always been treated as a creditor to her husband's estate. She has been recognized in that character in respect to her paraphernalia; as where "the husband, in his lifetime, being under the necessity of raising money, pledges her jewels, etc., and dies, leaving personal property more than sufficient to pay his debts. She shall have the aid of his personal estate to redeem her paraphernalia thus pledged."

So, too, "where real estate is devised for the payment of debts, and the executor takes the paraphernalia, on account of a deficiency of assets in the personal funds, to pay the debts, she shall have the same right against the estate, so devised for the payment of debts, to refund to her the real value of her paraphernalia, as a creditor can have who has not paid his debt for the want of assets." Reeve on Domestic Relations, 38. These benefits result to her, not by virtue of any agreement on the part of the husband, but by mere operation of law.

In another class of cases, where wives have made savings out of certain allowances, given to them by their husbands, for private expenditure during cohabitation, the amount will be decreed to them as against the representative of the husband; and this, too, in the absence of any agreement made for such an allowance before coverture. Clancy's Husband and Wife, 272, 276.

It was settled at an early period, in England, that where a husband voluntarily allows his wife, after marriage, to make profit of the produce of his farm, her savings should be her own, subject, after the death of her husband, to no claims but those of creditors.

In Slanning v. Style, 3 P. Williams, 337, which has been a leading case on the subject we are now discussing, the chancellor held, that where the husband had borrowed £100 from *his wife, [523 which she had saved during coverture, from the sale of pigs, poultry, butter, etc., the same should be allowed to her, as a cred