Butlek, J.
The petitioner, a judgment creditor, having levied his execution on two tracts of land which formerly belonged to the debtor, but which before the commencement of the suit had been conveyed to his wife, Prances B. Parkis, seeks to obtain the legal title from the said Prances, alleging that said conveyances were without consideration, voluntary, and as against him void. If his case is proved he is undoubtedly entitled to relief.
The respondents allege that there was a consideration for the conveyances, for that by an “ arrangement ” between them made soon after their marriage in 1832, all the money she had earned by her personal services, and all she should thereafter earn, were to be hers and kept by her husband, and invested in a place in the country in her name, and that she [196]*196did earn moneys, and that the lands in question were in fact purchased with them and conveyed to her pursuant to said arrangement.
It appears from the facts found that the respondents were citizens of New York at the time they were married, and continued so until 1852, and that at the time of the marriage the respondent Frances had about $75 saved from her earnings which she delivered to her husband at the marriage. Soon after the marriage the arrangement set up in defense was made which the committee find as follows :—
“ A short time prior to the commencement of housekeeping by said Parkis and his wife, Mrs. Parkis informed her husband that she should require the $75 which she had delivered to him after their marriage, for the purpose of enabling her to purchase necessary articles of household furniture. To this use of the money by her said Parkis objected, telling her that lie wished his money to be used for that purpose, as he did not wish to take from her the avails of her labor ; and then or about that time promised her that said sum of $75 saved by her from her earnings before marriage, with what she had since earned, and all that she by her personal labor and industry might thereafter earn, should be hers, and kept for the purpose of purchasing at’ some future time a place in the country to belong to her. The said promise was never reduced to writing, nor'was there any pecuniary or other consideration therefor except as above stated.” It is further found that after that and before they removed to Connecticut in 1852, Mrs. Parkis worked out as a laundress, and earned during the whole period an amount without interest of at least $3,500 ; that her earnings were generally paid to her and deposited by her or her husband together with his earnings in some savings bank in New York in his name and subject to his order, and that there was nothing in the manner of keeping the accounts to indicate that any other person had any interest in them, and that, when he had occasion to draw money, he drew as though he was solely interested therein, but with the understanding and intention on his part that [197]*197what he drew of her earnings should be repaid to her or again deposited for her benefit. About twelve hundred dollars of such deposit was drawn and paid towards the property in question, and the balance of the purchase money was paid by the money or labor of the husband. This is all there is in the finding which is material to the question whether Mrs. Parkis has any equity in these lands by virtue of the arrangement.
As these parties were during the whole period when these moneys were earned citizens of New York, the question whether Mrs. Parkis acquired any equitable interest in her earnings or not must be determined by the laws of that state and not of this.
What the laws of New York then were as applicable to the question is not found. In the absence of any evidence on the subject they would be presumed to be those of the common law. By the statute of 1840 we are authorized to take .judicial notice of the statutes and decisions of other states. We must go then to the statutes and decisions of New York to learn the legal and equitable effect of the arrangement in question.
The statutes of that state have no bearing upon it. Those of 1848,1849, and 1853, are liberal in their recognition and protection of the rights of married women in respect to their separate estate, but make no alteration in the common law as then in force, in respect to gifts or grants from the husband to the wife, or the right of the husband to her services and earnings. Lovett v. Robinson, 7 How. P. R., 105 ; Willard’s Equity, 641.
By the common law a,s then in force in that state the earn-/ ings of the wife vested in the husband. The husband could make a gift,to the wife which would be supported in equity. Neufville v. Thompson, 3 Edw., 92 ; Borst v. Spelman, 4 Comstock, 284. So husband and wife could contract for a valuable consideration for a transfer of property from him to her and the agreement be enforced in equity. Livingston v. Livingston, 2 Johns. Ch., 537. In these respects [198]*198their law conformed to that of this and most or all the other states of the Union.
And the general rules which govern courts of equity in respect to the support of such gifts and contracts between husband and wife were in force then, and those rules it is important to recall and bear in mind in considering the equitable effect of the arrangement in question.
Such agreements are void at law. Equity examines them with great caution before it will confirm them. They must be fair and certain; it must be clearly and satisfactorily shown that the purpose is a provision for the wife; the property must be distinctly separated from the mass of the husband’s property pand they must not interfere with the rights of creditors. Wallingsford v. Allen, 10 Peters, 583.
Examined in the light of these essential principles the claim of the respondents can not be sustained. An occasional case may be found perhaps where they have been strained as far as we are asked to go between a widow and heirs, but never against a creditor.
In the first place the arrangement could have no force or effect whatever as a contract. There was no consideration whatever for the promise. The courts of New York we are satisfied would not sustain it as an executory agreement operating to vest the future earnings of the wife in her as earned. If then it could have any operation to transfer an equitable interest in the property it must be by way of gift.
But as a gift it lacks the essential requisite of a delivery to the wife to hold exclusively as her property. “ Where the subject matter is capable of delivery, a delivery, actual or symbolical, is essential to constitute a valid gift by parol.” Abbott’s Digest, 242; see title Gift, sec. 1, citing numerous cases. Now in respect to the seventy-five dollars which was hers at the time of the marriage and which she delivered to him afterward, no re-delivery, actual or symbolical, after the making of the arrangement, is found or was claimed. And in respect to the subsequent earnings, although naturally. [199]*199paid to and collected by her, they were not reserved or held as hers, but they were immediately passed over to him precisely as if no arrangement existed, and were never retained .in her possession as her own. Nor does the case show any separation of these earnings from, the mass of his property to be kept by or for her.
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Butlek, J.
The petitioner, a judgment creditor, having levied his execution on two tracts of land which formerly belonged to the debtor, but which before the commencement of the suit had been conveyed to his wife, Prances B. Parkis, seeks to obtain the legal title from the said Prances, alleging that said conveyances were without consideration, voluntary, and as against him void. If his case is proved he is undoubtedly entitled to relief.
The respondents allege that there was a consideration for the conveyances, for that by an “ arrangement ” between them made soon after their marriage in 1832, all the money she had earned by her personal services, and all she should thereafter earn, were to be hers and kept by her husband, and invested in a place in the country in her name, and that she [196]*196did earn moneys, and that the lands in question were in fact purchased with them and conveyed to her pursuant to said arrangement.
It appears from the facts found that the respondents were citizens of New York at the time they were married, and continued so until 1852, and that at the time of the marriage the respondent Frances had about $75 saved from her earnings which she delivered to her husband at the marriage. Soon after the marriage the arrangement set up in defense was made which the committee find as follows :—
“ A short time prior to the commencement of housekeeping by said Parkis and his wife, Mrs. Parkis informed her husband that she should require the $75 which she had delivered to him after their marriage, for the purpose of enabling her to purchase necessary articles of household furniture. To this use of the money by her said Parkis objected, telling her that lie wished his money to be used for that purpose, as he did not wish to take from her the avails of her labor ; and then or about that time promised her that said sum of $75 saved by her from her earnings before marriage, with what she had since earned, and all that she by her personal labor and industry might thereafter earn, should be hers, and kept for the purpose of purchasing at’ some future time a place in the country to belong to her. The said promise was never reduced to writing, nor'was there any pecuniary or other consideration therefor except as above stated.” It is further found that after that and before they removed to Connecticut in 1852, Mrs. Parkis worked out as a laundress, and earned during the whole period an amount without interest of at least $3,500 ; that her earnings were generally paid to her and deposited by her or her husband together with his earnings in some savings bank in New York in his name and subject to his order, and that there was nothing in the manner of keeping the accounts to indicate that any other person had any interest in them, and that, when he had occasion to draw money, he drew as though he was solely interested therein, but with the understanding and intention on his part that [197]*197what he drew of her earnings should be repaid to her or again deposited for her benefit. About twelve hundred dollars of such deposit was drawn and paid towards the property in question, and the balance of the purchase money was paid by the money or labor of the husband. This is all there is in the finding which is material to the question whether Mrs. Parkis has any equity in these lands by virtue of the arrangement.
As these parties were during the whole period when these moneys were earned citizens of New York, the question whether Mrs. Parkis acquired any equitable interest in her earnings or not must be determined by the laws of that state and not of this.
What the laws of New York then were as applicable to the question is not found. In the absence of any evidence on the subject they would be presumed to be those of the common law. By the statute of 1840 we are authorized to take .judicial notice of the statutes and decisions of other states. We must go then to the statutes and decisions of New York to learn the legal and equitable effect of the arrangement in question.
The statutes of that state have no bearing upon it. Those of 1848,1849, and 1853, are liberal in their recognition and protection of the rights of married women in respect to their separate estate, but make no alteration in the common law as then in force, in respect to gifts or grants from the husband to the wife, or the right of the husband to her services and earnings. Lovett v. Robinson, 7 How. P. R., 105 ; Willard’s Equity, 641.
By the common law a,s then in force in that state the earn-/ ings of the wife vested in the husband. The husband could make a gift,to the wife which would be supported in equity. Neufville v. Thompson, 3 Edw., 92 ; Borst v. Spelman, 4 Comstock, 284. So husband and wife could contract for a valuable consideration for a transfer of property from him to her and the agreement be enforced in equity. Livingston v. Livingston, 2 Johns. Ch., 537. In these respects [198]*198their law conformed to that of this and most or all the other states of the Union.
And the general rules which govern courts of equity in respect to the support of such gifts and contracts between husband and wife were in force then, and those rules it is important to recall and bear in mind in considering the equitable effect of the arrangement in question.
Such agreements are void at law. Equity examines them with great caution before it will confirm them. They must be fair and certain; it must be clearly and satisfactorily shown that the purpose is a provision for the wife; the property must be distinctly separated from the mass of the husband’s property pand they must not interfere with the rights of creditors. Wallingsford v. Allen, 10 Peters, 583.
Examined in the light of these essential principles the claim of the respondents can not be sustained. An occasional case may be found perhaps where they have been strained as far as we are asked to go between a widow and heirs, but never against a creditor.
In the first place the arrangement could have no force or effect whatever as a contract. There was no consideration whatever for the promise. The courts of New York we are satisfied would not sustain it as an executory agreement operating to vest the future earnings of the wife in her as earned. If then it could have any operation to transfer an equitable interest in the property it must be by way of gift.
But as a gift it lacks the essential requisite of a delivery to the wife to hold exclusively as her property. “ Where the subject matter is capable of delivery, a delivery, actual or symbolical, is essential to constitute a valid gift by parol.” Abbott’s Digest, 242; see title Gift, sec. 1, citing numerous cases. Now in respect to the seventy-five dollars which was hers at the time of the marriage and which she delivered to him afterward, no re-delivery, actual or symbolical, after the making of the arrangement, is found or was claimed. And in respect to the subsequent earnings, although naturally. [199]*199paid to and collected by her, they were not reserved or held as hers, but they were immediately passed over to him precisely as if no arrangement existed, and were never retained .in her possession as her own. Nor does the case show any separation of these earnings from, the mass of his property to be kept by or for her. The whole conduct of the parties respecting them is indicative, not of an intentional change of title, — a transfer of interest, — of a separation of property for her sole use, — of the vesting of moneys in her, to be hold as a provision for her, and by the husband as trustee, — but of an intention on the one hand and an expectation on the other, that, at some future day,.they or an equivalent amount would be set apart, given, devoted to making a provision for her, by the purchase of a place in her name in the country. The conduct of the parties in connection with the character of the arrangement clearly indicates that there was no executed gift which vested the earnings in the wife and constituted the husband a trustee for her, but an intention and expectation of a future gift, and which was in part executed, but not till after the rights of the petitioner as a creditor had intervened. Such, so far as we can judge from the current of decision in New York, would be the view which their courts would take of the transaction.
But if it were possible to hold the arrangement set up suffi- ' ciently certain in itself and sufficiently executed according to the rules of equity to pass an equitable interest in her earnings to the wife by way of gift, it would still be impossible to sustain these conveyances on that ground either by the common or the statute laws of this state. It appears clearly that the earnings of both parties were indiscriminately deposited in his name, and drawn upon indiscriminately for all their expenses and wants, and that at the time the property in question was purchased, twelve hundred dollars only of the earnings of both remained unexpended. This use of the fund must be presumed to have been known and assented to by her. The deposits were made in part by her in his name, and she knew of course, as there was no separation, they would be drawn for expenses in connection with moneys earned by him. [200]*200If indeed the executory agreement could be holdeu valid, as the respondents’ counsel suppose, so that. he could be held responsible as trustee for an amount equal to all that he received of her earnings, then indeed it would be immaterial what particular moneys formed the consideration of this purchase. But if an interest in her earnings arose only by reason of a gift and attached to them as a particular fund, and they were, with her knowledge and acquiescence, expended otherwise, and were not devoted to the purchase of the lands in question, it is not easy to see upon what principle she can claim an equitable interest greater than the amount of her earnings which actually entered into the consideration. Nor is it possible to say how much of her earnings entered into the purchase in fact, and we think it clear that in that respect there is not that certainty which courts of equity require and ought to require in respect to transfers between lrasband and wife, especially as against a creditor. And as it is not found and can not be ascertained what amount of her earnings were invested in the property, it is not possible to give her the benefit of them in equity or under the statute of 1850, without covering the money and labor of the husband which formed a part of the purchase money from the creditor. If the amount of her interest could be ascertained, perhaps provision could be made for its protection without • covering the property of the debtor under her title. As it is, it can not be done and such covering can not be permitted.
But we are satisfied that she must be permitted to retain the life estate conveyed to her by the deed of September 5th, 1859, and that that deed should be confirmed on another ground. It sufficiently appears that the conveyance of the life estate was a reasonable provision for her, and that his property and indebtedness were then such that neither the petitioner nor any other creditor was or could be prejudiced thereby. .
The superior court must be advised to pass a decree in favor of the petitioner in respect to the title acquired by the deeds of the 6th of January, 1862, from H. A Parkis to J. W. [201]*201Jennings, and from Jennings to Frances B. Parkis subject to the mortgage to-Joseph J. Jennings.
In this opinion the other judges concurred; except Mc-Curdy, J., who dissented.