Buchanan v. Deshon

at this term, delivered the opinion of the Court. The creditors of William Buchanan applied to the court of chancery for the sale of his real estate to pay his debts, his personal estate being insufficient for that purpose. A decree passed for its sale, and the proceeds were brought into the court of chancery for distribution. Mrs. Buchanan, his widow, to whom he was married in the Isle of France in the year 1803, applied by petition to the court of chancery to receive a dividend as a creditor, in virtue of certain marriage articles entered into between herself and her husband before their intermarriage in the Isle of France; and also claimed that a certain portion of the proceeds of sale should be allotted to her ire lieu of her dower in the lands. Mrs. Buchanan was an alien, never naturalized, and continued to reside in a foreign country until the death of her husband. Both those pretensions have been rejected by the chancellor, and she seeks redress from his judgment by sn appeal to this court.

Mrs. Buchanan, being an alien, is by the common law not entitled to dower in the lands whereof her husband died seized. An alien may purchase lands, arid hold them against every one, (except the state,) until office found, of until the government shall exercise its authority over them. But an alien cannot inherit lands — the law, which never does any thing in vain, will not cast the inheritance upon one whom its policy forbids should hold it.

The widow cannot be considered as a purchaser, and, therefore, entitled to hold her dower until office found, but comes tañer estate by operation of law, as does an heir by descent; and, therefore, cannot take it, and is in the same predicament as are *290alien claiming to inherit. Either could take by act of the parties, as by purchase, but neither by operation of law.

The act of assembly of 1813, ch. 100, which authorises the endowments of aliens residing after their intermarriage in the United States, does not, it is believed, reach a claim situated as this is. Mrs. Buchanan never resided, as it is admitted, at any time during the coverture, in the United States, and without such residence she was not entitled to any benefit of the provisions of that law. The legislature contemplated a capacity to take dower at the instant of the husband’s death, and did not mean that the estate, which should descend to the heirs at law, should be liable even for a season, at any distant period to be divested by the contingent removal and residence of the wi - dow within the limits of the state.

It is not perceived what operation the treaties between the United States and the French government of 1778 and 1801, or the act of assembly of 1780, ch. 8, can have in giving effect to the claim of the appellant to dower. The seventh section of the last convention gave to French suhjects power to dispose by donation, testament* or otherwise, of goods, moveable or immoveable, held in the territory of the United States, to such persons as they shall think proper; and by the same article the capacity to inherit is conferred on the citizens of the then French Republic. Thus was given the power to devise,' and the capacity to inherit. It is doubtful whether by the most liberal construction, this clause in the treaty could be made to extend to a claim for dower; yet if extreme liberality were to give to its terms such a construction, yet it must be observed that the treaty expired by its own limitation in 1809, before the death of William Buchanan. If a right had vested un« der this treaty, there can be no doubt but that such right would be maintained notwithstanding the expiration of the treaty, and that it would have been equally valid as if the treaty had a perpetual duration. But Mrs. Buchanan had no vested right, it was altogether contingent, depending upon her surviving her husband, and her rights actually accruing before the treaty should expire. It had (if the treaty by any possibility could be considered as embracing it,) a mere inception and commence-spent, and was not perfected and complete until the death of *291her husband, and until the treaty had expired, at which time her capacity to take her dower, with which she might have beén clothed, during the existence of the treaty, ceased with the expiration of that convention.

The treaty of 1778, (which was followed by the act of 1780, ch. 8,) provided the subjects of the King of France, should not be reputed aliens, and gave a disposing and inheritable capacity to them; but whatever might be considered the operation of this treaty, it was abrogated in 1798, long before any right to dower in the appellant could have had even an inception; and the act of 1780, ch. 8, (passed no doubt in part with the view ol giving efficacy to the liberal principles of this treaty, and from a supposed necessity of some legislative act being necessary to give operation to it, being passed as it was under the confederation,) will be found not to be coextensive with the provisions of the treaty to which it refers, and to contain no enactment (considering it as a permanent law,) which reaches, or in any manner could affect the claim of the appellant.

From the above views it appearing that Mrs. Buchanan's alienage would preclude her from her enjoyment of dower, it is rendered unnecessary to examine the marriage articles for the purpose of ascertaining whether the covenants therein contained legally or equitably barred her of dower, nor shall we express an opinion upon that subject.

If the appellant is not entitled to dower, it is contended that; she is entitled to be considered as a preferred creditor, to the extent of her claim, under the marriage articles, or, at all events, to be considered as having an equal right with the other creditors for a distributive share of the proceeds of sale.

It is not perceived upon what ground her pretensions to a preference can be rested. The articles cannot be viewed as a. settlement, but must be considered merely its the light of a cove nant or agreement made for the valuable consideration of marriage. To maintain this position no authorities need be cited; it may be sufficient to say that the marriage articles have no one legal attribute of a marriage settlement, so as to overreach the elaims of creditors. But why should she not be considered in the light of a general creditor of her husband’s estate, and although entitled to no preference, yet to an equal claim with the rest of *292the creditors? The absence of a settlement has no bearing on the question, A legal obligation can be created without such settlement. A covenant or agreement before marriage, to pay her a given sum of money, could, after his decease, be enforced against the husband’s representatives. Then why could not this agreement to pay her an annuity?" It was made upon a consideration which was valuable, and one upon which the law always looks with a favourable eye. The mode stipulated by which it is to be raised- ought not to affect her substantial rights under the agreement. The great object of the 8th article was to secure her the payment of an annual sum, and must be equivalent to an agreement or obligation for that purpose — the mode by which it was to be effected was to her immaterial. Had a settlement, after marriage, been made, grounded upon this ante-nuptial agreement, it would have been clear]}' sustainable against the claims of the creditors. Rob. Fraud. Conv. 318. And it is not perceived why a failure on the husband’s part to comply with the agreement, can have the effect, not only of depriving the wife of a preference over other creditors, but of postponing her claim until they shall be entirely satisfied. The obligation fo pay cannot be lessened by the neglect to set apart the fund from which the annuity might arise. If we ought not to look with peculiar beneficence Upon her claim, it is surely entitled to equal regard and consideration with those of the creditors. Her pretensions are condemned by no fraudulent considerations, but are built upon the same moral foundation upon which those of the creditors rest.

Her right to pome in with the general creditors having been determined, the extent of that claim is the next question for consideration. The Sth article of the marriage agreement, upon which it rests, is peculiarly worded; but we cannot doubt, upon a just construction of it, that she was to receive an annuity during life of $2000.

It would be difficult to resist the claim of Mrs. Buchanan to the payment of the annuity during the whole period of the marriage. We conceive that it commenced at the period of their union; for the parties covenant that there shall be no community of property, and the husband covenants to support the domestic establishment, and to maintain his wife and children *293out of his own resources. Hence there could be no room to suppose or presume that this annuity was applied during coverture 1o the maintenance ol the wife, as it might be if the husband had not explicitly bound himself to support her out of his own estate. We could not consider her maintenance as equivalent to the annuity, because it does not appear to be secured for such an object. Nor can we conceive that the circumstance of her never having demanded it during her coverture, could be considered as a waiver of her right, for she was under the legal control of her husband, and sufficient reason might spring from such a consideration for her failure to demand the annuiiy; but we are precluded, from the shape in which these proceedings arc presented to the court, from making her a creditor on the estate for the amount of her accruing annuity during coverture, as it does not appear to have been claimed on her part, and she only seeks to be considered a creditor from the death of her husband.

The auditor has valued the life annuity, and added it to the arrearages claimed, for the purpose of ascertaining her debt; and, for the purpose of ascertaining the childrens’ claim he has given them in presentí, a sum in lieu of what they are by the contract to receive at their mother’s death. It must be observed, as an objection to this course, that the children by the agreement were not to have any thing until their mother’s death; and the contract of the husband with the wife and children, will be both gratified by considering the capital of $40,000, from which was to arise the annuity, as a claim entitled to a dividend, equally with the other claims, which dividend should by the court of chancery he invested in some profitable stock, the accruing interest on which should be directed to be paid to the mother for life, and the principal at her death be distributed equally among the children. The auditor has calculated the arrearages of the annuity frpm the death of fV. Buchanan, with the accruing interest to the day of sale. These arrearages properly constitute the debt due her, and when the amount shall have been ascertained she must, for such an amount, be considered a creditor, and entitled to a dividend. This dividend then, together with the interest which shall arise on the investment, which it has *294been suggested should be made, will constitute her entire claim-■against the estate of her husband. — Decreed, that the order or decree of the court of chancery of the 4th of May 1825, so far as it rejected the claim of the appellant to be allowed any portion Of the proceeds of the sale of the real estate of her husband, William Buchanan, be reversed, with costs to the appellant, both in this court and in the court of chancery. And this court proceeding to decree, as they are of opinion the chancellor should have done, do further decree, that the appellant is entitled to a dividend out of the amount of the proceeds of the sale of the said real estate, as a general creditor upon the said fund to the amount of the arrearages of the annuity due to her under the marriage contract between herself and her said husband, in the proceedings mentioned, together with the accruing interest on the said annuity from the time of the death of her said husband, to the time of the sale of his said real estate, as estimated and ascertained by the auditor of the court of chancery by his account in the proceedings accompanying his report of the 30th of November 1820. Decreed also, that over and above the said amount due to the appellant for the arrearages of the said annuity, and with a view to give her the full benefit of the said marriage contract, as far as may be, consistently with the rights of the other creditors of the estate of William Buchanan, and of the rights secured to the children of the said marriage, that the capital of @40,000 from which the annuity to the appellant, under the said marriage contract, was to arise, be considered as a claim entitled to a dividend equally with the other proper claims against the proceeds of the sale of the said real estate. Decreed also, that, the amount of the said dividend upon the said sum of @40,000 be invested by the court of chancery, or under its direction, in some profitable stock, or in some good real securities, as in the discretion of the chancellor shall seem to him sufficient, and tinder all circumstances most to the interest of the appellant and her said children, to be selected by the court of chancery; and that the said court shall direct the whole of the interest or profits which may from time to time accrue upon the said stock ©r real securities as aforesaid, during her life, to be paid to the .appellant, or her representatives; and that at her death, the *295whole of said investment of the dividend of $40,000 be divided equally among the children of the marriage of the appellant, and the said William Buchanan, or their proper representatives. Decreed also, that the chancellor pass all such orders and decrees in the premises as may he necessary to carry this decroe into effect.

DECREE REVERSED, &C.,