The opinion of the Court was delivered by
Gibson, C. J.— The right of the plaintiffs depends not on considerations which might affect a gift to them from their mother, but on their father’s final disposition. It may well be doubted whether- he did not succeed to the immediate ownership óf the price at the execution of the conveyance; for if there were no'preliminary agreement with the.mother, the property would .change its owner the moment it changed its specific character, insomuch that he might have prevented her from retaining either a legal, or an equitable interest in it. As her chose in action, he could have received it to' his own use in her lifetime; and surviving her, would have been entitled to it as her administrator. In Lodge v. Hamilton, (2 Serg. & Rawle, 491,) a recognizance to husband and wife'for the wife’s share of her father’s land, which was consequently their joint chose, was held to survive to her only because she was named' recogni’see. It may be that a bond in the name of him from whom 'the consideration emanated, but declaratorially in trust, shall not be taken for a gift,before the money has been paid over; but that is not the case of a bond to' a bare trustee who did not own the money it was given to secure, et cujusfuit nec daré nee disponere. A bare trustee would not be suffered to defeat the trust-by an act of collusion ; and for all beyond her annuity, what .else was the mother 1 As the surviving obligee, she was the owner of the money at law, but certainly not in equity. Even were the positive assent of a trustee necessary to the validity of th'e instrument, the mother’s assent could not be material in this'instance; for were her name-stricken out of the bond, a legal, title to it would be found in her husband’s executor. Besides, equity would not suffer the trust to fail for the mere want of a trustee.
But treating the money as an accessory of the land by reason of some supposed condition of the wife’s concurrence in the conveyance, as perhaps we ought to do, the consequence is the same. As her separate property, if such it were when converted, she might deal with it as a feme sole, and entitle herself to the same judicial consideration in respect of it. But there, again, the conventional rights of the husband would intervene. The bond and deed, constituting as they do one conveyance, are parts of a settlement whose office it was to make present distribution among the children, *26reserving an annuity , to' the parents; towards .which the father contributed an inceptive freehold, and for the benefit of whom? Certainly for that of the children. The actual value of his interest cannot be computed; but it may have been greater than the sum reserved out of the proceeds, which is' enough to make him a purchaser. The mother also was a-purchaser, for she threw in the fee; and it will not, be said that the husband, surviving her, could have disappointed her bounty by destroying tjie security, and I see not why her power over it should have been greater. To deprive the children of what their father had given_ them,, would be á*fraüd, not only on them, but' on him. Whether the father and mother could have conjointly destroyed the settlement, is not the question ; but had the interests secured by it been estates in land, they would have vested by the deed, and it would have been beyond their power to divest them.. It is clear, however, that without his concurrence, even these chattel interests, granting that- they sprung mainly from the contribution of the mother, could not be defeated by her. The vigilance of Courts, both of law and equity, in protecting a common concession or gratuity is finely illustrated by decisions on underhand agreements. In Turton v. Benson, (P. Wms. 496,) a bond clandestinely taken by a wife’s father to refund a part of hér portion, was declared to be a fraud on the obligor’s mother, who had negotiated the marriage, and settled motley on him; for which,' not only she, but the obligor himself, was entitled to be relieved. Exactly on the same principle stands every decision on an underhand agreement in derogation of a compromise with creditors, which is usually founded as much in benevplence as in interest, and of which it is an implied condition that none take measures to gain a particular advantage, it being presumable that all' consented to release only on terms of equality. Such is the principle of Leicester v. Rose, (4 East, 372;) and it was applied in Middleton v. Onslow, (1 P. Wms. 678,) to' a case which bears a strong analogy to the present. A wife entitled to trust money, procured an order to apply part of it to her husband’s debts on terms of composition. Some of the creditors who had held off till the last moment, executed the deed on receiving, from the husband, securities for future payment; and these were ordered to be delivered up, because her sacrifice in consideration of his liberty, would else have been in vain. In all the reported cases of this stamp, there was an underhand agreement at the execution of the deed; but if a concomitant agreement be set aside to prevent imposition on a benefactor, why should not a collusive release by a trustee, or a fraudulent act of cancellation also be set aside? In fact the former is so much the weaker case, that it is perhaps the only one in which a party to a fraudulent agreement may be relieved .against it: here the plaintiffs did not even participate in the act of the trustee. As already intimated, I do not say that the expression of a gift in the body of a bond may not be recalled before payment *27over; but where the consideration has not moved exclusively from the obligee, it would be a fraud on a joint contributor to arrest it. Here the surviving obligee was a trustee; and she shall not, by a collusive cancellation, disappoint the purpose of her husband, either as the proprietor of the fund, or as a contributor to it. The cancellation was the act of a spoiler which shall npt discharge the instrument. For the form of recovery, the plaintiffs might use the name of the surviving obligee’s personal representative, who would be' restrained from doing any act to impede them; and they are consequently entitled on the facts submitted.
Judgment is to be entered for the plaintiffs, pursuant to the agreement in the case stated. ,
Judgment for the plaintiffs.