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Huffman v. Copeland et al.

taken possession of by the other devisees. It was claimed that under these facts the wife had the same right to put her husband to an election to take or reject the provisions of her will, as a deceased husband had to compel his wife to elect, and that the mere fact that the husband had elected, after the death of his wife, to accept the will, prevented any estate vesting in him, except such as was devised to him by the will, while it was contended, on the other hand, that a husband could not be put to an election.

The court did not decide the case upon this point, but held that the facts stated showed that the will had been executed pursuant to a contract between the husband and wife, which was effectual to intercept the vesting in the husband of any interest in her estate or real estate except such as the contract provided for.

In its reasoning the court said: "If the husband prefers a life estate in a particular piece of the property, and to secure the desired estate promises to accept such a life estate and to relinquish his claim as to all other interest in his wife's property, and she, in consideration of that promise, undertakes to vest that life estate in him, the agreement is valid, because it possesses all the essential features of a contract. If the contract were carried into effect by the execution of a deed, it would, as it seems to us, be impossible to impeach it. No ground upon which it could be impeached occurs to us, and none has been suggested.

"The difference between the case we have put by way of illustration and the real cause consists simply in the method of vesting the life estate in the husband. In the supposed case the method is assumed to be by deed, while in the real case it is by will.

"We can not believe that the method of vesting, whether by deed or will, can change the legal aspect of the case,

Huffman v. Copeland et al.

provided there is, as here, an execution of the contract by the husband by a family settlement and a delivery and an acceptance of the respective estates created by the wife's will. Once it is granted that such a contract is valid, then it must follow that the method of vesting the estate is not of controlling importance. Equity regards the substance of a transaction, and not the form. Where the substantial merits of a transaction bestow rights upon the parties, form is not of much moment."

It may be observed that the contract in this case was not in writing, and it was objected by the judgment creditors of the husband that it could not be enforced for that reason, but the court held that the objection of the statute of frauds was only available as between the parties to the contract, and it was decided upon the sole ground that the will had been made limiting the husband's interest to a life estate in one parcel, pursuant to a contract between the husband and wife whereby, in consideration that she would devise to him this interest in her real estate, he agreed that she might devise all the residue of her real estate to her children, which contract had been executed by the making of a will pursuant to its provisions, which the wife had allowed to become her last will and testament.

It is true, it was averred that the husband, when it was entered into, was free from debt, but the decision puts no stress upon this fact, and is made to turn solely upon the fact that there was a contract upon a sufficient consideration between the husband and wife for the making of the will in question and under which it was executed. It is apparent that the husband's freedom from debt can not be a material consideration. No matter how insolvent the husband may be, nor how many judgments may be outstanding against him, if the wife should desire to sell her real estate to a third person, and

Huffman v. Copeland et al.

the husband, without receiving any part of the purchasemoney, should join in the deed, the mere fact that he was indebted would not affect the transaction. The con¡veyance would be perfectly valid and the entire estate would pass to the grantee. In such case the creditors of of the husband, whether by deed or otherwise, would have no lien against her real estate. They could not subject to the payment of their debts the husband's inchoate interest. It is too intangible to be reached, or in any way affected by his creditors. His interest is, in the lifetime of the wife, precisely of the same character as the wife's inchoate interest in his real estate. It has been held that the deed of the wife in which the husband joins, attempting to convey her inchoate interest in his real estate to a third person distinct from the husband's interest, is absolutely void. McCormick v. Hunter, 50 Ind. 186.

It has also been decided that the wife's inchoate interest is so intangible in its character that she can not maintain an action to quiet her title thereto. Paulus v. Latta, 93 Ind. 34.

Under these authorities it is clear that Copeland, at no time during the life of his wife, had any interest in her real estate that he could have conveyed, separately from the entire estate, for any purpose. It therefore follows that he had no interest that could have been subjected to the payment of his debts. It can not be successfully contended that at the time the contract was entered into between him and his wife the appellant could have levied an execution, issued upon his judgment, upon any interest in Mrs. Copeland's real estate, or that he had any lien upon any interest therein by virtue of his judgment, nor could it be contended that the joint deed of Mrs. Copeland and her husband would not have conveyed her real estate to the grantee, absolutely, free

Huffman v. Copeland et al.

from any claim of the appellant by virtue of his judg ment, nor would it make any difference that the transfer was without consideration. Nor can it be insisted that if Mrs. Copeland had intended to convey her land by deed, precisely as she has conveyed it by the will in question, the appellant could have prevented the husband from joining therein.

Under the statutes of this State, a married woman holds her real estate absolutely free from the debts of her husband, or from any control by him. Indeed she holds it precisely as if she were unmarried, except she shall not convey or mortgage the same unless her husband join in such contract, conveyance, or deed. R. S. 1881, section 5116; Burns R. S. 1894, section 6962.

It is not until after the decease of the wife that the husband acquires an interest in her real estate which may be subjected to the payment of his debts. It is the event of her death which creates such interest, and if before that time a contract has been made between her and him, which otherwise disposes of such interest, the contract so made precludes the vesting in him of any interest by descent.

The legislation of this State, in this line, for the past forty years, has been remedial in its nature and for the purpose of placing a married woman in a position, so far as her property is concerned, as entirely unfettered and independent of the husband's debts, as if she were unmarried. All this, however, would be defeated if, whenever he became insolvent or in debt, he was deprived of the power to enter into contracts with her by which she could dispose of it free of his inchoate interest. The strong equity, calling for the upholding of such agreements, can only be overcome by a superior counterequity. But in this case the appellant, who is only a

Huffman v. Copeland et al.

judgment creditor of Copeland, with nothing more than a general lien, has no equity whatever.

It is settled by this court that a judgment creditor has only such rights as the lien created by statute gives him, the extent and effect of which are measured by the statute, and that prior equities will prevail against a judgment lien. Warren v. Hull, 123 Ind. 126; Shirk v. Thomas, 121 Ind. 147; Whipperman v. Dunn, 124 Ind. 349; Lord v. Bishop, 101 Ind. 335; Koons, Admr., v. Mellett, 121 Ind. 585.

The cases of Roach v. White, supra, and Wright, Admr., v. Jones, supra, establish as the law of this State that a contract may be entered into between a husband and a wife by which any interest in her real estate which would go to him at her death by descent may be devised to other persons so as to preclude him or his creditors from asserting any claim thereto. It can not be that one-third of the real estate of which the wife dies seized descends to the surviving husband, despite any contract he may have entered into with his wife to preclude such descent. The inchoate interest of the husband in the lifetime of his wife is not such a vested interest as to be protected by the constitution against legislative change, or even entire abolition. Noel v. Ewing, 9 Ind. 37.

It was certainly competent for the Legislature, at any time before the husband's rights became vested by the death of the wife, to amend the law so as to enlarge her testamentary powers over her real estate as against the husband, and for a stronger reason it may be enlarged as against his creditors.

The act of March 4, 1891 (Acts of 1891, p. 71) amends section 2485, supra, by adding the following proviso: "Provided, If the wife shall have left a will, such widower may elect to take under the will, instead of this or any other law of descents of the State of Indiana, which

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