that has been done, the practical result will be the same as if the present settlement had been left untouched. They also referred to Cutten v. Sanger. (a) * 301 Mr. Nalder, for Messrs. Fulstow and Hart, the trustees. of the antenuptial settlement, took no part in the argument. Mr. Malins, in reply. The post-nuptial settlement had the effect of withdrawing the property comprised in it from the reach of the creditors of Henry Willows, who was in reality the settlor; it was, therefore, within the purview of the statute of Elizabeth, and void as against such creditors. French v. French, (b) Neale v. Day, (c) and Richardson v. Smallwood, (d) and Townsend v. Westacott, (e) show that there is no necessity to show insolvency on the part of the settlor at the date of the settlement. As to Mrs. Willows's claim to an equity to a settlement out of this fund, the Court will not hold her entitled to any such equity, when upon her marriage she herself determined what proportion of the larger fund, of which the 20007. comprised in the post-nuptial settlement is a part, she would on that occasion leave unsettled. The Lord Chancellor, at the conclusion of the argument, requested to be furnished with the names of any authorities on the question of an additional settlement being made where one had been already made on the marriage, and the following cases were mentioned. Burdon v. Dean, (g) and Barrow v. Barrow. (h) Judgment reserved. 1865. January 18. 302 *THE LORD CHANCELLOR. - The plaintiff sues as a creditor to set aside a voluntary settlement or deed of gift made by the defendant, his debtor. The plaintiff's debt was contracted before the time of making the settlement. He has since recovered judgment at law, and the debtor has become bankrupt. (a) 2 Y. & J. 459. (b) 6 De G., M. & G. 95. (c) 28 L. J. (N. S.) Ch. 45. (d) Jac. 552. (g) 2 Ves. Jr. 607. (h) 18 Beav. 529; 5 De G., M. & G. 782. The plaintiff complains, in the words of the statute of Elizabeth, that his judgment and execution are hindered, delayed, and defrauded by the conveyance of the goods and chattels of his debtor made by this voluntary settlement. The defence is, that at the time of making the settlement the debtor reserved and had property enough to pay the plaintiff and all his other creditors in full, and that the settlement, therefore, is not fraudulent, because the debtor remained solvent after he had made it. There is some inconsistency in the decided cases on the subject of conveyances in fraud of creditors, but I think the following conclusions are well founded. If the debt of the creditor by whom the voluntary settlement is impeached existed at the date of the settlement, and it is shown that the remedy of the creditor is defeated or delayed by the existence of the settlement, it is immaterial whether the debtor was or was not solvent after making the settlement.1 66 * * 303 But if a voluntary settlement or deed of gift be impeached by subsequent creditors whose debts had not been contracted at the date of the settlement, then it is necessary to show either that the settlor made the settlement with express intent to delay, hinder, or defraud creditors," or that after the settlement the settlor had no sufficient means or reasonable expectation of being able to pay his then existing debts, that is to say, was reduced to a state of insolvency; in which case the law infers that the settlement was made with intent to delay, hinder, or defraud creditors, and is therefore fraudulent and void. It is obvious that the fact of a voluntary settlor retaining money enough to pay the debts which he owes at the time of making the settlement, but not actually paying them, cannot give a different character to the settlement or take it out of the statute. It still remains a voluntary alienation or deed of gift, whereby in the event the remedies of creditors are delayed, hindered, or defrauded. See the remarks of Lord HATHERLEY L. C. and GIFFARD L. J., in Freeman v. Pope, L. R. 5 Ch. Ap. 543, 544, on the above expression of opinion by Lord WESTBURY; Bellows J., in Pomeroy v. Bailey, 43 N. H. 122; Potter v. McDowell, 31 Missou. 62; Norton v. Norton, 5 Cush. 524; French v. French, 6 De G., M. & G. 95; Strong v. Strong, 18 Beav. 408; Thompson v. Webster, 7 Jur. (N. S.) 531; Corlett v. Radcliff, 14 Moore P. C. 121; Smith v. Cherrill, L. R. 4 Eq. 390; Van Wyck v. Seward, 18 Wend. 375; Babcock v. Eckler, 24 N. Y. 623. I am therefore of opinion that this settlement is void as against the plaintiff. But then the question arises, what is the property of the debtor which actually passed to the trustees of the settlement under the assignment made by the debtor? At the time of the marriage of the defendants Mr. and Mrs. Willows, Mrs. Willows, then Elizabeth Story, widow, was possessed of a sum of 40007. secured on mortgage of real estates, and also of some other personal property. By a settlement made previously to the marriage, the mortgage debt of 4000l. was assigned to trustees, and it was declared that they should stand possessed of one moiety of this sum upon trusts which were in effect for the separate use of Mrs. Willows during her life, and after her decease for the children of the intended marriage, *304 and in case there should be no * child, upon trusts for the sisters, brothers, and certain nephews and nieces of Mrs. Willows absolutely; and as to the other moiety of the said mortgage debt or sum of 4000l., it was declared that the same should not be in any way subject to the trusts of the marriage settlement, but should, while the same remained on the existing security, be held by the trustees in trust only for the said Elizabeth Story, her executors, administrators, and assigns, and when realized to be paid over to her and them in the same manner as she or they would have been entitled to receive the same in case the assignment and marriage settlement had not been executed. On this the first argument was, that the word "only" created a separate use in Mrs. Willows. No such conclusion can be maintained. For separate use there must be words referring to the event of marriage and creating a separate character, or directing an exclusive enjoyment. The last words of the clause in the present case are conclusive. This last mentioned sum of 20007. is the subject of the voluntary settlement made by the defendants Henry Willows and his wife by indenture dated the 15th of November, 1861. The defendants contend that if this deed be set aside, Mrs. Willows has an equity to have an additional settlement made out of the 2000., especially as her husband is bankrupt and unable to maintain her. At the hearing I doubted very much whether there was, under the circumstances of this case, any equity in the wife for an additional settlement; but on examination of the decided cases, I find they have gone so far that I cannot refuse an inquiry whether an additional settlement ought* or not to * 305 be made. (a) It appears to me, therefore, that the decree ought to be thus worded: "Declare that the deed of the 15th of November, 1861, in the pleadings mentioned, is fraudulent and void as against the plaintiff, and that so much of the 20007. mentioned in the said indenture as shall not be required for the purposes of any settlement under the inquiry hereinafter directed is applicable in payment of the plaintiff's debt and interest thereon, and also of his costs of this suit, and refer it to the Judge in Chambers to inquire whether, having regard to the settlement made on the marriage of the defendants Mr. and Mrs. Willows, and to the present circumstances of the defendant Henry Willows, any and what additional settlement ought to be made out of the last mentioned sum of 20007. on the defendant Mrs. Willows and the children, if any, of the marriage," with a reservation of the further consideration of the cause. The deposit may be returned. The case again came before the Court under circumstances resulting from the order now made, and is reported in such further stage before the Vice-Chancellor in 13 W. R. 1034, and before the Lord Chancellor in L. R., 1 C. A. 520. *FLOYER v. BANKES. *306 1863. July 11, 15. November 5, 7. Before the Lord Chancellor Lord WEST BURY. By an antenuptial settlement executed before the passing of the Property Tax Act, lands were appointed to the use that the intended wife might, after the intended husband's death, receive a jointure rent-charge in lieu of dower out of any lands to which the husband was or might become entitled, without any deduction in respect of any tax then already or thereafter to be imposed on the jointure or on the jointress in respect thereof: Held, 1. That the jointress was not as a purchaser for value or otherwise exempt from property tax. 2. That she was entitled to have the tax raised and paid out of the land in addition to or exoneration of the jointure. (a) See Burdon v. Dean, 2 Ves. Jr. 607, and Barrow v. Barrow, 18 Beav. 529; 5 De G., M. & G. 782. THIS was an appeal from a decision of the Master of the Rolls, (a) that succession duty was not payable in respect of two rent-charges of 8007. and 700l. respectively. The question arose on the petition of the plaintiffs in a suit to carry into effect the trusts of a settlement, by which the rent-charges were unaffected, but under which the plaintiffs were trustees of a term of 500 years in the settled estates on trusts for management and otherwise. Under an indenture of resettlement dated the 2d of June, 1821, executed by Henry Bankes, the tenant for life, and William John Bankes, his eldest son, who was the tenant in tail in remainder, the estates in question were limited to such uses as the father and son should jointly appoint, and in default of such appointment and subject to certain intervening uses (which in the events which happened never arose) to the use of Henry Bankes for life, with remainder (subject to an intervening limitation to trustees to preserve) to William John Bankes for life, with divers remainders over. By an indenture dated the 7th of June, 1822, executed in consideration of the marriage then contemplated and afterwards solemnized between George Bankes, the second son of Henry Bankes, with Georgina Charlotte Nugent, the joint power of appoint*307 ment reserved to Henry Bankes * and William John Bankes by the indenture of the 2d of June, 1821, was duly exercised, and certain hereditaments, part of the settled estates, were thereby limited as follows: "To the use, intent, and purpose that the said Georgina Charlotte Nugent and her assigns shall and may, in case she shall survive the said George Bankes, have, receive, and take during the term of her natural life, for har jointure, and in lieu and satisfaction of the dower or thirds, and free-bench at common law or by custom or otherwise, which she might otherwise have, claim, or demand to or out of all or any lands or hereditaments in England or elsewhere, or which he the said George Bankes now is or shall, during the said intended coverture, be seised for any estate of inheritance or to any other estate to which dower or free-bench is incident, one annual sum or yearly rent-charge of 8007." chargeable upon the hereditaments appointed, and to be paid "without any deduction or abatement whatsoever on account or in (a) See 32 L. J. (N. S.) Ch. 610, 613. |