The opinion of the court was delivered,
by
Agnew, J.The claim in this case against the estate of Louisa Bear arose upon a distribution in the Orphans’ Court, and not in an action to recover the sum. We have therefore no question of pleading or of averment to meet. All that is required is that the claims shall be one for necessaries for the support and maintenance of her family — that they were contracted for by her or in her name by some one authorized by her to do so, and that her husband was insolvent: 11 Casey 384; 1 Wright 251. The auditor has found these facts. It is true he says for necessaries, omitting to say for the support and maintenance of her family; but on referring to the testimony brought up by the appellants, it clearly shows that the amount was for articles used in the maintenance of the family. Nor is it less clear to our minds upon a just, construction of Martin Bear’s testimony that the debt was contracted for these necessaries, in her name and by her authority. ' This assignment of error is not supported.
We think the other branch of the case was also well decided. There is no doubt that the assignment of Martin Bear to Jonas Chamberlain of his interest in the residue of his wife’s estate was made upon a valuable consideration and for a full price. But it is supposed that the communication of Bear’s expectation that if he kept it, his interest would be attached by other creditors, and that something would have to be done to save it from attachment, is such a fraud on part of both that the assignment is vitiated by it. The auditor finds as a fact that there was no fraudulent purpose on part of Chamberlain, and that his purpose was to be secured in *436a debt which Bear owed him. We are not able to say that the testimony proves that this was a clear mistake on part of the auditor and of the court who confirmed his report. Chamberlain had a motive entirely adequate; to wit, the preservation of his own debt against Bear, who was insolvent. Fraud is not to be presumed without satisfactory proof of its existence; which can scarcely be affirmed, where a proper motive exists, which might have been as readily the operating motive as one that was fraudulent. As to Chamberlain’s taking time to deliberate, it affords little or no proof of fraud. The-nature of the interest, to wit, an unsettled balance of an estate in the course of administration, the law of its distribution, and the right passing under the assignment, were matters calculated to make any one hesitate, and to lead him to inquire how far he would be safe in advancing money upon it. Had Chamberlain’s debt equalled the interest assigned, his motive to obtain it by putting aside other creditors would not have affected his title, according to Covanhovan v. Hart, 9 Harris 500. So here his purchase being found to be ancillary to the main object of saving his debt, and not being fraudulent in actual intent, will not be tortured into a fraud in the absence of satisfactory evidence disclosing a positive intent to collude with Bear to hinder and delay his creditors.
Decree affirmed.