The opinion of the court was delivered, January 5th 1869, by
Sharswood, J.
At common law a man, who is sui jwris and compos mentis, may give away all his personal property, so as to become himself and leave his wife and children, penniless: 1 Blackst. Com. 449; 2 Kent’s Com. 440. As to his lands and tenements his wife is protected to the extent of her dower against any transfer or disposition of her husband by act inter vivos or last will and testament, without her consent; and by the 11th section of the Act of April 11th 1848, Pamph. L. 537, commonly called the Married Women’s Act, the husband cannot by will deprive his wife of the share of his personal property, to which she is entitled under the intestate laws. But as to personal property by gift inter vivos his power is absolute. This is perhaps to be regretted, but it is too well settled to be now shaken. The civil law, that code of written reason, did not permit it. No donation could give away the legitime or legal portion to which children or other persons were entitled as against the will of the owner, and who could attack the testament as inofficiosum: 1 Domat 402, Strahan’s ed. Nay, if a donation were of all one’s goods, there must be reserved either the usufruct of the goods given or some part which may suffice for the sustenance of the donor: Ibid. But in our law no such gift otherwise valid can be impeached as a fraud on a man’s wife or children. They have no legal right to any part of his goods, and therefore no fraud can be predicated of any act of the husband or parent to deprive them of the succession. “ Who so ignorant,” says Gibson, O. J., “ as not to know that a husband may dispose of his chattels during the coverture without his wife’s consent, and freed of every post mortem claim by her ?” Ellmaker v. Ellmaker, 4 Watts 91. A dictum by Woodward, C. J., in Evans v. Dravo, 12 Harris 65, appears adverse to this view, but the question there was whether in an action on a bond given in part for the purchase-money of real estate, the purchaser could set up that the husband had entered into an agreement not to enforce payment of the bond, which had been taken, in order to induce the wife to execute the deed; and [286] it was rightly ruled that he could not, as it was in fraud of the wife. The husband there sued on the bond. Had he voluntarily surrendered or cancelled it, and the action been by his executor or administrator to recover it, an entirely different question would have been presented.
There is another point which is equally indisputable. As a party cannot set up his own fraud to avoid any instrument or contract executed or entered into by him, so neither can his personal representative after his death, without some affirmative evidence that it is necessary to enable him to discharge debts of the decedent and then only to the extent to which it may be so necessary: Buehler v. Gloninger, 2 Watts 226. “ There being no averment,”
says Rogers, J., “ that the estate was insolvent, the presumption was that the administrators had assets in their hands sufficient to pay the debts.” In Stewart v. Kearney, 6 Watts 455, Gibson, C. J., in an action of trover by an administrator for goods alleged to have been transferred by the intestate in fraud of creditors, said: “ This action is maintainable in the name of the administrator as a trustee for the creditors only so far as the property in contest may be needed for payment of debts, whose existence the plaintiff will be bound to ghow:” and the judgment below was reversed, and the cause sent back with this instruction as to the law. See also Schriber v. Rapp, 5 Watts 351; Englebert v. Blanjot, 2 Whart. 245.
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The opinion of the court was delivered, January 5th 1869, by
Sharswood, J.
At common law a man, who is sui jwris and compos mentis, may give away all his personal property, so as to become himself and leave his wife and children, penniless: 1 Blackst. Com. 449; 2 Kent’s Com. 440. As to his lands and tenements his wife is protected to the extent of her dower against any transfer or disposition of her husband by act inter vivos or last will and testament, without her consent; and by the 11th section of the Act of April 11th 1848, Pamph. L. 537, commonly called the Married Women’s Act, the husband cannot by will deprive his wife of the share of his personal property, to which she is entitled under the intestate laws. But as to personal property by gift inter vivos his power is absolute. This is perhaps to be regretted, but it is too well settled to be now shaken. The civil law, that code of written reason, did not permit it. No donation could give away the legitime or legal portion to which children or other persons were entitled as against the will of the owner, and who could attack the testament as inofficiosum: 1 Domat 402, Strahan’s ed. Nay, if a donation were of all one’s goods, there must be reserved either the usufruct of the goods given or some part which may suffice for the sustenance of the donor: Ibid. But in our law no such gift otherwise valid can be impeached as a fraud on a man’s wife or children. They have no legal right to any part of his goods, and therefore no fraud can be predicated of any act of the husband or parent to deprive them of the succession. “ Who so ignorant,” says Gibson, O. J., “ as not to know that a husband may dispose of his chattels during the coverture without his wife’s consent, and freed of every post mortem claim by her ?” Ellmaker v. Ellmaker, 4 Watts 91. A dictum by Woodward, C. J., in Evans v. Dravo, 12 Harris 65, appears adverse to this view, but the question there was whether in an action on a bond given in part for the purchase-money of real estate, the purchaser could set up that the husband had entered into an agreement not to enforce payment of the bond, which had been taken, in order to induce the wife to execute the deed; and [286] it was rightly ruled that he could not, as it was in fraud of the wife. The husband there sued on the bond. Had he voluntarily surrendered or cancelled it, and the action been by his executor or administrator to recover it, an entirely different question would have been presented.
There is another point which is equally indisputable. As a party cannot set up his own fraud to avoid any instrument or contract executed or entered into by him, so neither can his personal representative after his death, without some affirmative evidence that it is necessary to enable him to discharge debts of the decedent and then only to the extent to which it may be so necessary: Buehler v. Gloninger, 2 Watts 226. “ There being no averment,”
says Rogers, J., “ that the estate was insolvent, the presumption was that the administrators had assets in their hands sufficient to pay the debts.” In Stewart v. Kearney, 6 Watts 455, Gibson, C. J., in an action of trover by an administrator for goods alleged to have been transferred by the intestate in fraud of creditors, said: “ This action is maintainable in the name of the administrator as a trustee for the creditors only so far as the property in contest may be needed for payment of debts, whose existence the plaintiff will be bound to ghow:” and the judgment below was reversed, and the cause sent back with this instruction as to the law. See also Schriber v. Rapp, 5 Watts 351; Englebert v. Blanjot, 2 Whart. 245.
One other question remains to be considered before proceeding to notice in detail the assignments of error in this case. The transfer of a chose in action, whether by instrument under seal or not, unless founded on a sale for a valuable consideration, is not complete and executed until delivery to the assignee. When there is a contract for the sale of a chattel or of a chose in action, no doubt actual delivery of the thing, or of the evidence of it is not necessary to perfect the title of the vendee. The property passes whenever the terms of the contract are settled and the subject-matter ascertained and set apart: Smyth v. Craig, 3 W. & S. 14; Parker v. Donaldson, 2 Id. 9. But in a gift of a chattel actual delivery is essential. Until delivery, the gift is revocable by the donor. So where there is a voluntary bond or a gift of a security, or other chose in action, and the donor executes an assignment, whether under seal or otherwise, and retains the paper in his own possession, he retains at the same time entire control over the gift; he may cancel or destroy the transfer. No court of equity would compel the delivery of it to the donee; for a chancellor never interferes to enforce any contract not founded on a meritorious consideration: 2 Kent Com. 438-9; Clemson v. Davidson, 5 Binn. 398; Aycinena v. Peries, 6 W. & S. 251; Nesmith v. Drum, 8 W. & S. 9; Yard v. Patton, 1 Harris 288. But it is urged that the seal in law imports consideration and the [287] transfer on its face purports to be for a valuable consideration, by which the assignor and volunteers under him will be estopped from denying it. This may be true, but the seal produces no such effect until the instrument becomes the deed of the party by delivery or what in law is equivalent thereto. Until then the assignment, though signed and sealed, is still an unexecuted transfer in the eye of the law. The cases cited and relied on by the learned counsel for the plaintiff do not support his position. In Smith v. Smith, 5 Barr 256, there was an express direction by the obligor in a paper which was admitted to probate as testamentary that his executors should deliver the bond in question after his death. In Parker v. Urie’s Executors, 9 Harris 305, the case is put on the ground that there was a valuable consideration for the assignment. “ Where,” says Lewis, C. J., “ one on his death-bed expresses a wish to his heir-at-law that certain persons whom he names shall receive of his estate specified articles and sums of money as gifts from him, and the heir promises him that his request shall be fulfilled, the necessary implication is that the promise is to be performed after the death of the promisee, and that the consideration is that the promissor shall succeed to his estate under the intestate laws.” In Bunn v. Winthrop, 1 Johns. Ch. Rep. 829, the deed is stated to have been delivered, though it was retained in the possession of the grantor. There was nothing in that circumstance necessarily inconsistent with delivery. After the most formal delivery, a deed may be returned to the possession of the grantor for safe keeping or any other lawful purpose. So in Boughton v. Boughton, 1 Atkins 625, the fact that the deed had been fully executed by delivery is assumed: all that was decided was that such a deed kept by the grantor in his possession, and never cancelled, will not be set aside by a subsequent will. In Johnson v. Smith, 1 Ves. 314, the question whether there was sufficient evidence of'a delivery was argued by the counsel and noticed by Lord Thurlow. The grantee had- the key and custody of the assignment, though the grantor still had access to it, and dealt with the securities assigned as his own. The decree was that the grantee should elect between that assignment and a voluntary bond subsequently executed and delivered, because the courts always lean against double portions. I have examined carefully the other cases cited, but find no one of them to sustain the position contended for — that an assignment of a chose in action by deed under seal, but without a valuable consideration, is binding on the assignor, or those who claim under him, without that which in fact or in law actually or constructively amounts to a delivery. Colman v. Sarrell, 1 Ves. Jr. 50, is a clear authority for the doctrine that a court of equity will not enforce an unexecuted voluntary agreement. “ To do so,” said Lord Thurlow, “ would be to make him who does not sufficiently [288] convey, and Ms executors after Ms death, trustees for the person to whom he has so 'defectively conveyed; and there is no case where a court of equity has ever done that. Whenever you come into equity to raise an interest by way of trust, you must have a valuable or at least a meritorious consideration. Nothing else will do.” That a voluntary deed once perfected cannot be revoked at pleasure, even though the grantor has retained it in his own custody, was decided in Worrall v. Jacob, 3 Merivale 256; but no question was made in that case as to delivery. The deed in question was a writing under seal in execution of a power of appointment contained in a marriage settlement. In view of these principles and authorities, it follows that the learned judge in the court below was right in his instructions to the jury which are complained of in the 7th and 8th assignments of error. Pie left it to them to determine upon the evidence whether there was only “ a purpose to assign, or preparation for it, and not an executed or operative assignment such as passed the title or a consummated or finished transactionin other words, “was there an assignment in point of fact.” In this there was nothing of which the plaintiff in error has any right to complain.
The first error assigned is that the court admitted in evidence the testimony of the husbands of living daughters of John Pringle, the intestate, whose administratrix was prosecuting this proceeding for the benefit of his estate. That the daughters themselves were interested and incompetent witnesses was not disputed; and indeed one of them, Catharine Snyder, was excluded expressly on that ground. But nothing is better settled than that wherever the wife is interested, the husband cannot 'be a witness; not on the score of his interest, for he may preclude himself from any by a release, or may have done so by a settlement to her separate use, but entirely on the ground of public policy. It is necessary to preserve family peace and maintain that full confidence which ought to subsist between husband and wife: Snyder v. Snyder, 6 Binn. 483; McComb v. Dillo, 5 S. & R. 304. “ The husband cannot be a witness for his wife in a question touching her separate estate:” Lord Mansfield in Wyndham v. Chetwynd, 1 Burr. 424; Davis v. Dinwoody, 4 T. R. 678. There was no pretence here that the proceeding was carried on for the benefit of creditors —no evidence that the money: or any part of it was needed for the payment of debts. There "ivas therefore no possible contingency or uncertainty in the interest of the wives. They had a clear, certain and direct interest in the success of the plaintiff in recovering a verdict on this feigned issue, and thus settling that the judgment in question belonged to the estate of their father. We are of opinion that there was error in the admission of these witnesses.
[289] The 2d, 3d and 4th assignments of error may be considered together. They complain of the admission of evidence of the declarations of John Pringle the assignor made subsequently to the date of the alleged assignment. It must be observed that in presumption of law, every deed is taken to have been executed on the day of its date; and if produced by the grantee is presumed also to have been then duly delivered. Every instrument under seal also as against the grantor, and all volunteers claiming under him, imports a valuable consideration. We have seen, too, that a voluntary deed of gift, provided it has been fully executed and perfected by delivery, cannot be revoked by the donor. It is plain upon principle, then, as well as upon the authority of many decided cases, that the declarations of a grantor or donor, made in the absence of the grantee or donee, and subsequent to the grant or gift, are inadmissible to impeach the title derived under it. It is unnecessary to cite these cases at large. Among them are some very nearly resembling this case in their circumstances: as Reichart v. Castator, 5 Binn. 109; Wolf v. Caruthers, 3 S. & R. 240; Whiting v. Johnson, 11 Id. 328, and Scott v. Heilager, 2 Harris 238. These are all cases of instruments alleged to be fraudulent as to creditors. We have seen that a gift of personalty by a husband is no fraud on his wife, nor was there here any evidence or pretence of fraud upon creditors; there could therefore have been no conspiracy between John and George Pringle to defraud anybody, nor was there any evidence of it. The declarations of the one could not therefore be received on the principle which admits the declarations of co-conspirators against each other. We think there was error in allowing this evidence to be given.
The 5th error assigned is in admitting Lucy Pringle as a witness. She was the widow of a deceased son of John Pringle. It did not appear whether her husband had died before or after his father. If it was before, it is clear that she would have no interest in the estate. Every witness is presumed to be competent until the contrary is made to appear, either on the voir dire or by evidence aliunde. This assignment of error, therefore, is not sustained.
In regard to the 6th assignment, it has already been disposed of. So far as the testimony of the witnesses related to declarations by John Pringle in the absence of George, whether to prove fraud or the non-execution of the assignment, it was inadmissible. As to any facts which such of them as were competent might be able to testify tending to show that the assignment had never been executed and perfected by delivery, it would be material and admissible.
The 7th and 8th assignments of error have already been considered.
The 9th assignment is for admitting the deposition of II. G. [290] Patton. The grounds of objection are stated in the bill of exceptions, but although the learned judge may have intended to state the facts as proved or admitted, he has not done so. The evidence as we have it on the paper-book does not support these objections in point of fact. The testimony of Joseph Miller is altogether insufficient for the purpose. It may be inferred indeed from what he says that the deposition was taken in the manner it was by consent or at least without objection. If the fact was that the witness was in such a weak and dying condition as to preclude the defendant from cross-examination, and such cross-examination was not waived, the deposition ought not to have been admitted. But as this does not appear we cannot say there was error in admitting the deposition.
The 10th assignment of error is to the form of the issue awarded by the court. It was doubtless framed that the questions of law involved might so arise on the trial of the issue, that either party might thus obtain the opinion of the court of the last resort. Had it been confined to the narrow question of fact of the execution or delivery of the assignment, the parties would not have enjoyed that privilege. Whether the note on which the judgment was entered had been legally transferred presented indeed a mixed question of law and fact: but so would have been an issue as to whether it had been executed and delivered, for what amounts to an execution and delivery, when the facts are proved, is a question of law.
Nor have we any right to revise the action of the court below in ordering the issue to be put at the head of the trial list and be tried upon its merits without pleadings, which forms the subject of the 10th assignment of error. That was entirely within the sound discretion of the court and is not rightfully the subject of review here.
Judgment reversed and venire facias de novo awarded.