FORD v. FORD et als., 4 Ala. 142

ORMOND, J. This bill is filed by the plaintiff in error, in- ’ sisting that she was lawfully married to Hezekiah Ford, deceased, in Virginia, in 1797, that he abandoned her a few years after, having received in her right a considerable property — ■ that he came to this State, and in 1S17 entered into a pretended marriage with the defendant, Nancy N.

Ford, and died intestate in 1839 — that whilst in bad health, laboring under a fatal chronic disease, and in contemplation of death, to defraud complainant, he conveyed all his property of every description to trustees, for the benefit of his last wife and her two children, reserving to himself an annuity of a thousand dollars a year, during his life, which deed, the bill alledges, was executed in lieu of a will, and toriake effect at his death. It was argued by the defendants in error, that there was no sufficient proof of the first marriage.

Upou an indictment for bigamy, and in the action for criminal conversation, the fact of the former marriage must be proved by the production of the record of the marriage, or by a witness present at the ceremony. In all other cases, cohabitation as man and wife, reputa-tation, the acknowledgment of the parties themselves, their reception as man and wife by their relations, &c. will be sufficient proof of the fact, or at least raise a presumption, that a marriage in fact took place until the contrary is shewn.

The proof in this case goes far beyond those presumptions which are usually held proof of a marriage in fact,and leaves no doubt whatever that the parties were legally married, as stated in the bill. The ground of the claim asserted by the bill is that the deed in favor of the second wife and the fruit of that connection, is a fraud upon the rights of the first wife.

Whilst it is admitted that the husband might have made a perfect gifi during his life of all his personal property, and thus have prevented .his wife from receiving any portion of it under the statute of distributions, it is insisted that such gift must be complete, and that in this case the reservation of a thousand dollars a year during the life of the grantor, shows that the gift was not Iona fide, but merely intended to defeat the rights of the complainant. .

This is certainly a case of the first impression, at least in this country.' The authorities cited in support of the view taken by the counsel for the plaintiff in error, and the cases in 2d Vernon, which arose on the custom of London, and a passage in the work of Mr.

Justice Story on Equity, upon the authority of a recent case in the House of Lords, which he states as a curious case, illustrating the extent to which Courts of Equity will go to enforce the specific performance of contracts in cases where afraudulentevasion is attempted. “If a person covenants or agrees,or in any other manner validly binds himself to give to A. by his will, as much property as he gives to any other child,' he may put it out of his power to do so by giving all his property in his lifetime.

Or if he binds himself to give to A. as much as he gives to B. by his will, he may in his lifetime give to B. what he pleases, so as by his will he shall give to A. as much as he gives to B. But then the gifts that he makes in-his lifetime to B. must be out and out.

For if to defraud or defeat the obligation he has thus entered into he gives to B. any property, real or personal, over which he retains any control, or in which he reserves an interest to himself, then, in order to protect the agreement or obligation which he has thus entered into, and to defeat the fraud attempted upon that agreement or obligation, and to prevent his escaping as it were from his own contract, Courts of Equity will treat this gift to B. in the same manner as if it were purely testamentary, and were included in a will. [2 Story’s Eq. 94, §786.] Without at all questioning the authority here cited, we are of opinion that this case is entirely dissimilar.

The decision in the case cited by Mr. J. Story, was made on the ground of contract, the performance of which was attempted to be evaded ; but the right which a wife has to a portion of her husband’s personal estate, after his death, is not in the nature of a contract with the husband. He has by law, during his life, the most absolute and unqualified dominion over it. The only restriction which has been imposed on him in favor of his wife is in its disposition after his death by will.

It is difficult then to conceive how a disposition of property made in the lifetime of the husband, and to take effect immediately, could be fraudulent against the wife, as no right whatever vests in the wife until his death. Her title is derived, not from contract, but is vested in her by law and has no existence whatever until his death.

It is not necessary to consider the effect of the cases cited on the custom of London,in which certain dispositions of property were considered in fraud of the custom, nor is it necessary to enter upon the inquiry whether there is not a distinction between the right vested in the widow and children by the custom of London to a part of the personal estate of a freeman of the city, not disposed of in his lifetime, and the right under the statute of distribution, because we are of opinion that the second wife and her children are' not mere volunteers.

The beneficiaries under the deed sought to be set aside, are those who had the highest possible claim on the deceased— they are the woman whom he induced to unite herself with him under the belief that she was becoming his wife, and the fruit of that connection — to provide for these persons he was under the highest possible moral obligation. The consideration therefore for the deed was at least a good one.

Nor would it be possible for a Court of Chancery, in passing on the relative claims of the first and second wife, to hold the first entirely guiltless of the consequences which have resulted to the second, from her connection with Ford. Although the evidence does not conclusively point to the plaintiff in error as the guilty cause of the separation, yet her conduct since that event has been such as at least to cast suspicion over her moral character before that time.

The equity of the plaintiff in error, abandoned by her husband near forty years since, which has been acquiesced in by her during all that time, could not, in a Court of Equity, in any possible view stand on higher ground than that of the second wife, upon whom no imputation can be cast, and who was ignorant of the rights of the plaintiff in error, if any she had.

Conceding then the equities to be equal, under the circumstances of this case, the second wife and her children must be considered purchasers for a good consideration, and as such entitled to hold the property at least against all whose equity is not superior.

In the English Chancery a decree is never made under marriage articles against the heir at law,even when otherwise provided for by the ancestor, unless those asking the aid of the Court are such as the settler was under a moral obligation to provide for, as in the case of a wife and children. [See the cases collected on this head in Atherly on marriage settlements, 131 to 138.] These cases show the extent to which a Court of Chancery will go in upholding imperfect settlements in favor of a wife and children, even against so favored a class as heirs at law in England. , The argument that this deed is a will in disguise, is answered by the deed itself — it was an irrevocable disposition of the property conveyed by it, by which the title passed immediately out of the grantor, and vested in the defendants; it was therefore clearly not testamentary in its character.

The imputation of fraud is repelled by the view already taken — that the grant- or was under a high moral obligation to provide for those to be: benefitted by the deed. It results necessarily from this, that the Chancellor was right in refusing dower to the plaintiff in those lands purchased for the defendants after the execution of the deed, the legal title to' which was never in the husband. The appeal taken in this case, only brings to our notice the decision of the Chancellor, refusing to set aside the deed and to allot dower in the lands purchased after the execution of the deed.

In this there was no error, and his decree is affirmed.