The defendants were husband and wife, married in 1838. The defendant Cornelia, at the time of her marriage, had about $2000, invested in bond and mortgage and in other sucurities, by the executors of her father’s estate. There was no ante-nuptial or post-nuptial agreement between the defendants in relation to the wife’s estate.
The defendant George H. Mitchell received about $1500 of this money that had belonged to his wife, in the year 1843, and the remainder about the year 1850. When the defendant Cornelia received the money, she says: “I handed it to my husband. I said take this, and take care • of it for me; I took no receipt or note ; there was nothing else said, that I recollect.” This was in relation to the amount last received. ' When she received the $1500, she says: “ It was paid to me in Poultney, Vermont; I handed it over to my husband to keep for me ; he gave no writing back to me;” “I said, take this money and keep it for me; take care of it, as you are the proper person to do so now; I think this is all that was said; the money was put into the house at Poultney; the title to the house was taken in his name.” In relation to the whole money, she also says: “ I agreed to let him have money before we were married; I told him I had money, that I wished him to take care of it for me.” The testimony of the defendant George Mitchell in relation to the money, is still more brief. He says: “ Before marriage—it may have been a day before, or a week, or two weeks—she agreed to loan me some money; this is the substance of all that was said about it.” “ There was an oral agreement after marriage—impossible for me to state when. Whenever or wherever anything was said, it was talked of as a loan to me, and nothing else.” This evidence is all that relates to the question of title to the estate that was in the defendant Cornelia Mitchell, prior to the marriage, or in *311relation to any agreement prior or subsequent to the marriage.
In the absence of any ante-nuptial agreement, the common law had been, and it has remained unchanged from the day that Lord Coke wrote the common law of England, and it continued to be the law in this State until the statutes of 1848 and 1849, that marriage is an absolute gift to the husband of the goods, personal chattels and personal estate of which the wife was actually and beneficially possessed, at the time of her marriage, in her own right, and of such other goods and personal chattels as come to her during the marriage. (Co. Lit. 351, b. 1. McQueen on Husband and Wife, 18,19. 1 Bright on Husband and Wife, 34.) Blackstone, who agrees to this as the law, says “that it is also generally true, that all compacts made between husband and wife when single, are voided by the intermarriage.” (1 Com. 442.) Of the wisdom of this law, or the question whether our statutes have not since made wiser provisions ■ in regard to the rights of married women, is not here to be decided.
Blackstone claims that the suspension of the legal existence of woman, during coverture, by the union of two persons into one, and the disabilities which follow or result, are for the most part intended ■ for her protection; and with perfect English gravity he tells us, “ that this is evidence to show how great a favorite is the female sex, of the law of England.” (1 Black. Com. 445.) It does not seem to be looked upon in that light by the more modern legislation of this State. Her separate existence for certain purposes, her capacity and competency to contract, convey and devise her estate, are here acknowledged for the same reason that ignores it in England, “ to show how great a favorite is the female sex” in this State, not only, but to admit, as is justly her due, her better right, and equal capacity and judgment, in the control of her own .estate. Though it is not, perhaps, necessary'for us *312tó pronounce upon the wisdom of these two adverse theories. We but pronounce the law to be as we find it, in its application to the rights of the parties at the time. Since our statutes have changed the law in this regard, the administration of the law, under two different rules— the one applying to the effect of coverture upon the personal estates of the wife before, and the other to its effect upon the same kinds of property sinoe those statutes—has created some apparent conflict in cases relating to that subject.
The coverture in this case being prior to the enactment of our statutes, at a time when, as-was said by Judge Denio, in 2 Kern. 419, “ a separate personal property in the wife was unknown to the common law, which considered the husband to be the owner of all the goods of the wife; and that all personal estate in possession of a woman vested absolutely in her husband, at the moment of marriage, and all which she acquired during coverture immediately became his, excepting only her contingent interest in choses in action not reduced to possession, which, in case of her surviving her husband, she retained the title to.” In this case the husband had a vested interest in the personal estate which his wife owned at the time of his marriage to her, and the subsequent reduction of it to his possession, even though a part of it so came to him after the taking effect of the acts of 1848 and 1849, in relation to the estates of married women, did not change his title to it. (Westervelt v. Gregg, 2 Kern. 202, 209.) Such property belonged to him, unless there had been some agreement prior to the marriage, amounting to an ante-nuptial agreement, of which there is no evidence.; or unless by some agreement between her and her husband afterwards, it became a separate estate; or he settled it upon her by a post-nuptial settlement, which, if made, must be inferred or implied from the conversations between them at the time of handing over the money, which *313we have set forth above. We. have seen no evidence of such agreement. It would be extremely, difficult to construe that language into a settlement, and it was not even attempted to be done on the argument; but that which is nearly equivalent, is urged upon the points.
It is attempted to be reasoned that the language referred to constituted a trust. There are at least three answers, each fatal to this claimed creation of a trust.
Mrst. The disability of coverture to make a valid contract between them.
Second. The want of evidence to authorize the finding that such a trust was created.
Third. The want of consideration to support such a contract.
1st. Blackstone says, (1 Com. 442 :) 11A man cannot grant anything to his wife, or enter into covenant with her, for the grant would be to suppose her separate existence; and to covenant with her, would be to covenant with himself.” The husband and wife being one person in law, the former cannot in law, after marriage, by any- conveyance at common law, give an estate to the wife, nor the wife to the husband. (Co. Lit. 112, 187, 6.)
2d. The husband’s evidence negates the idea of its being a trust. He says £ “ Whenever and wherever it was spoken of, it was to be a loan, and nothing else.” Hor does her testimony conflict with this statement. She says £ “ I handed it to him to take care of it for me.” There is nothing in all this that approaches to' the creation of a trust, or from which to imply a relinquishment of his right and title to the money.” (Ryder v. Hulse, 24 N. Y. 372.) A trust and a loan are terms of such indefinite meaning in common use, having different meanings in the minds of different persons, that we must adopt these terms according to their legal meaning in this case, unless the proved agreement constitutes the transaction a trust or a loan. If one lend another money at interest, *314and take his obligation to pay it, this constitutes neither a loan nor a trust, in law. A loan is strictly a bailment; but á discount is, in common parlance, often confounded with a loan. To create a trust, there must be, 1st, a subject matter and title to it; and, 2d, persons competent to create it. The legal title of this money, at the time of this conversation, by the evidence, was in the husband, and no consideration is shown, passing to him, to change the title. (1 McQueen on Husband and Wife, 273.) If it was her separate estate the onus was upon her to have shown it. If the title was in him, there was no consideration on his part. I understand by separate estate, in a feme covert, such property as is in some way settled upon her for her separate, use, without any control over it on the part of her husband. (4 Comst. 11, per Jewett, J.) There is no evidence of this being the wife’s separate estate.
But assuming the conveyance by the husband, George, to his wife, through the intervention of Mr. Lawson, to be a post-nuptial settlement, as I think we may, it would be a settlement that would be upheld in equity as between the husband and wife ; but would still be presumptively void as against antecedent creditors of the husband. The evidence is, that at the time he made this conveyance to Lawson for her benefit, he was insolvent; that he owed debts to the amount of $3000 over and above the amount he owed his wife, and that all his property was conveyed to his wife. This was the 5th of May, 1862. The judgment was obtained 19th of June, 1862, about six weeks subsequently. These records are not in evidence, and it does not appear when the debts for which they were obtained were contracted. It seems to have been assumed on the trial, by both parties, to have been prior to the conveyance, and no point is made on the argument, that the debts were not antecedent to the conveyances to his wife; we therefore follow that assumption. So, too, the judgment appealed *315from is complained of as an invasion of what is called the “ wife’s equity” in the estate of her husband.
We have already shown that this estate belonged to the husband at' law, and that this is an action in equity, by th§ creditors of the husband, to reach this estate conveyed to the wife. I do not understand that as against such antecedent creditors, the wife can set up her. equity in such subsequent settlement. I do not understand that the question of the “wife’s equity” arises here. What I understand is meant in the books, as the “wife’s equity,” is when a husband is obliged to resort to a court of equity in order to recover his wife’s property, legal or equitable, or to assert his rights in regard to it; the courts then apply the rule, that “he who seeks equity, must do equity,” and as the property of the wife is given by the marriage, to the husband, as a provision for the maintenance of both husband and wife, the courts will then interfere, and not apply it to the sole use of the husband, thus leaving it in his power to starve his wife; and especially in case the suggestion is made that it is necessary for the wife’s security. The court will require from the husband, in such case, a consideration for the property, in the shape of a settlement on his wife. This settlement, so ordered by the courts, is a provision founded upon the principle of natural equity and justice, and its administration partakes of that same kind of parental care which courts of equity, standing in loco parentis to femes covert, exercise in behalf of infants and orphans. This is what is called “ a wife’s equity.” (Bell on Law of Property, 114.) The defendants do not bring their case within the rule, so as to apply to it the principle of “ a wife’-s equity.”
It is also insisted that it is an act of great injustice to the defendant Cornelia R. Mitchell, that the court found that the deeds conveying this estate to her were made with fraudulent intent. It does not follow, from this finding, that the parties are found to have committed what is *316called active or meditated fraud. Acts may be performed consistent with entire innocence of intent, but which being contrary to some provision of the statute, which the statute declares fraudulent as to certain creditors, it is but the declaration of the language of the statute—a presumption cast by the statute arbitrarily. A party in attempting to secure a bona fide debt, may do an act with the purest motive, yet if done so as to affect the rights of other creditors, against some statute provision, the law declares it fraudulent. ([People v. Kelly, 35 Barb. 454, 455. Birchell v. Strauss, 28 id. 293. Spiers v. Joel, 1 Duer, 696.) The findings of the judge, that the acts in question were fraudulent, or done with fraudulent intent, may be merely constructive fraud, or as I understand the finding, it applies more particularly to the acts of the husband, George, than to the wife, Cornelia B. Mitchell, whom the evidence shows, merely accepted of a conveyance to secure to her the estate her husband had not taken care of as she directed.
It is insisted that the case of Schaffner v. Reuter, (37 Barb. 44,) is decisive of the questions arising in this. The fund used in that case was the proceeds of real estate, which would not be by marriage given to the husband, but would be protected upon the same ground as a wife’s separate estate. If that case is not supported upon this distinction it cannot be supported at all; it would otherwise be in conflict with law well settled for a century. I think there is a distinction between the cases; and the ground mentioned is one upon which, perhaps, Schaffner v. Beuter may be supported. We can only follow it to that extent, if at all. The property conveyed to the wife so far exceeds in value the amount of the money which it was conveyed to secure, it is of itself sufficient to authorize the holding that the conveyance was fraudulent as against antecedent creditors, without the finding of actual or meditated fraud. It was the conveyance, not merely of enough *317to secure his wife to the extent of the moneys claimed, but of all the remainder of his estate, and more than sufficient for the pretended object. A quiet acquiescence that her husband should use her estate as his own, mingling it indiscriminately with his own, in business, for a period of from twelve to nineteen years, without the recognition of its separate existence by even a written receipt, memorandum or separate investment, and without ever having during that period accounted for interest or principal, or even having talked about it, until the bona fide creditors were about to call for it, is a kind of trust or settlement that cannot be recognized by any rule of law or equity, to stand against the rights of antecedent creditors.
[Schenectady General Term, May 3, 1864.The judgment must be affirmed.
Potter, Bockes, James and Rosekrans, Justices,]