Is the judgment creditor of the husband, since the acts of 1848 and 1849, entitled to take the whole of the income of the wife’s property, leaving the wife, for the proposition goes that length, to starve!?
The marriages in this case, it is admitted, had taken place, and the debts been incurred, before the acts for the better protection of the rights of married women were passed. .. Both sets of engagements were contracts, both were then subsisting, and both had been entered into upon the faith of previous laws. As to both, therefore, it was. beyond the constitutional power of the legislature, had it been so intended, “ to impair their obligation.”
What then, for that is the point to be solved, were the previous rights of creditors of. husbands against the real estate of their wives 1
In Namceizaitz agt. Gahn (3 Paige, 614) it was held that the wife’s equity, as it is termed, was paramount to the .claims of the judgment creditor. And in Udell agt. Kenney, (3 Cow. 590; 5 Johns. Ch. R. 464,) the court held, also, that it could not be disposed of by the husband without making a suitable provision for her support, to be determined by.a reference, ad-cording to the circumstances of each particular case.
Besides, during the wife’s life, the husband’s title:—and his creditor’s title can be no better—was not absolute. . It might be suspended at, any moment, and even destroyed, by his misconduct. (4 John. Ch. R. 318; 4 Haywood, 19, 24; 2 M’ Cord, 368; 5 Monroe, 340; 1 Paige, 620.)
On a foreclosure, the surplus moneys brought into court are subject to its jurisdiction as a court of equity, which, in such cases, never allows the fund to be taken out without a suitable *281provision for the wife and her children. And as the sums in this case are small and not more than sufficient, the whole, independently of the act of 1848, must be adjudged to the wives.
I might here add, however, that if there were any doubts of the rights of the married women in this case, antecedently to the act of 1848, that act would remove them. Its validity in respect of after-acquired property can not be denied. The competency of the legislature to enact that property, thereafter devised or descended to married women, should be their own, exclusive of their husbands, stands upon precisely the same footing as their power, even against the presumptive rights of heirs apparent already born, to alter the law of descents and testaments. The law of primogeniture at one time prevailed even in this republican country. At the time of its repeal and of the substitution of the present rule, did any one contend that it was necessary to save the rights, or rather I should say the pretensions, of then existing eldest sons'? And are the mere expectations of creditors, as to property which may thereafter by possibility descend to their debtors’ wives, of any" more sacred character 1 When the constitution of the United States declared that no state should thereafter pass any law impairing the obligation of contracts, its object was to secure, not such airy possibilities, but substantial, well-defined rights, resting on specific contract, on legal obligation. Now, property which, when the act of 1848 went into operation, the wife did not then own, was clearly not subject to her husband’s then debts. And yet all her property, “ except only so far as .the same .might be so liable,” was, by the second section, declared for the future to be her sole and separate estate. The property in the present case at that time was not hers, but her father’s. It was liable, not for her husband's, but for her father's, debts. It did not become hers, nor had she any right in law, either contingent or vested, till her father’s death, which did not happen till 1849. Nemo est hares viventis—ali.ving man has no heirs—is a maxim which, in the sense just indicated, is as old as the law. Her father had a right to give his property to whom he pleased, and *282the legislature had a right, in the event of his not doing so, to say that it should pass absolutely and unencumbered to his married daughters, free from any control or disposal of their husbands. No wrong, in either case, was done to the husbands or the husbands’ creditors. They might be disappointed, no uncommon occurrence in this life, but a mere disappointment is not a breach of either law or constitution.
Decree accordingly, against the judgment creditor.
Note.—The foregoing decision was affirmed at the general term held in June, 1854. The decision in the case of Rusher and wife agt. Morris and wife, ante, p. 266, was also affirmed at the same time.