Smith v. Kane

2 Paige Ch. 303

Opinion

The Chancellor.

From the answer of the defendant E. Kane, it satisfactorily appears that she has the equitable right to the money in the hands of Alexander, for the support of herself and children. It was a debt due to the wife before her .marriage with Kane, and he has never reduced it into possession. By the consent of her husband, and in pursuance of a verbal antenuptial contract, she has been permitted to preserve this small fund as her separate property. In such a case this court would not aid the husband in obtaining this money from her or her depositary; and his- creditors or general assignees can have no greater equities. (Hornsby v. Lee, 2 Mad. Rep. 16. Gayner v. Wilkinson, 2 Dick. 491. Ex parte Beilby, 1 Glyn & Jam. 167. Udall v. Kenney, 3 Cowen, 590.) When an execution creditor comes into this court to reach property , of the husband which is - not subject to execution at law, he must take it subject to the wife’s .equity, which she had -a right to insist on as "against her husband.

The property in controversy here being wholly insufficient for the support of the wife and her children, and she having the prior equity, the injunction must be dissolved.