The bill in this case sets forth that the defendant, Mary Ann Reckless, then Mary Ann Patrick, on or about the second of October, eighteen hundred and thirty-seven, intermarried with the defendant, Joseph W. Reckless. That prior to the marriage it was agreed between them, that certain real and personal estate of which she was then seized and possessed, thould be conveyed and assigned to certain uses and trusts, and subject to certain powers and limitations, in the said bill mentioned, part of which were to provide for the enjoyment of the property by the said Mary Ann, to her sole, separate use during the coverture.
That afterwards, the defendant, Reckless, represented to hif ■wife, that in the event of her death he would derive no benefit from her estate; that she could not make a will; and that they *490would convey it to a trustee, pursuant to the ante-nuptial agreement, as soon as they could agree upon one, and induced her termite with him in a deed to his son Joseph, who was to immediately reconvey the property to his father.
Accordingly, on the thirty-first of July, eighteen hundred and thirty-nine, Joseph "W. Reckless and his wife, executed their deed to Joseph W. Reckless, junior, conveying to him in fee,, all the real estate of the wife; and Joseph "W. Reckless, junior,, at the same time, reconveyed the same to his father, by deed dated first of August, eighteen hundred and thirty-nine.
That these deeds were kept by the defendant, Reckless, in his trunk, until the first of March, eighteen hundred and forty-one, when his son Anthony found them, and put them on record.
That on the eleventh of June, eighteen hundred and forty-two, Reckless and wife made a deed of trust of the same premises, to Nathan Satterthwaite, the other complainant, in consideration of the ante-nuptial agreement, and in conformity therewith, and reciting the same.
That subsequently to the marriage, divers judgments were obtained against Reckless, upon which all his own property was-sold, and writs of testaimn fi. fa. were then issued and levied upon the property of the wife, and a part thereof sold by virtue of the older judgment, leaving a surplus. Application was-made to the supreme court by the creditors, for an order appropriating the surplus to the next execution.
That the supreme court declined making such order, but-directed the money to be retained in court, until the validity of the trust deed could be tested by suit in this court.
The bill prays that the trust deed may be declared valid against Reckless and all other persons claiming under him, and against the defendants, and that the sale of the residue of the property may be perpetually restrained.
This case involves the interesting question of the validity of a post-nuptial settlement made in pursuance of a parol ante-nuptial agreement.
*491And if such ante-nuptial agreement were fairly shown, I should be inclined to give validity to the settlement, in pursuance of it.
Such settlement could not be considered voluntary, but upon a good and valuable consideration, to wit, the marriage, and the conveyance of all the wife’s estate.
But there is no satisfactory evidence of such agreement.
The declarations of the husband, made during coverture, and shortly before the conveyance by the wife and himself to his son, are not sufficient. To allow such evidence would be dangerous in the extreme, and would enable any person who might be willing to make such a declaration, to defraud his creditors. In Reade v. Livingston, 3 John. C. R. 488, similar declarations of a husband were regarded as insufficient to support a settlement. See also Atherly on Marriage Settlements, 148; Randal v. Morgan, 12 Vesey, 74.
Equally dangerous would be the admission of the recital of such agreement in the deed of settlement, as evidence of the agreement. It is true, that efforts have been made in courts of equity, to sustain settlements purporting to be founded upon a parol ante-nuptial agreement, recited in the deed: Dundas v. Dutens, 2 Cox, 235; S. C. 1 Vesey, 196. But if allowed, I see no reason why any fraudulent creditor may not avoid the statute in any case, by a mere recital in his deed, of an ante-nuptial agreement. In Reade v. Livingston, chancellor Kent doubted much whether a post-nuptial settlement could be held valid against creditors, by the mere force and effect of a recital in it of a prior parol agreement. In Battersbee v. Farrington, 1 Swans. 106; 1 Wilson, 88; it was held that such recital was conclusive against all persons claiming under the settlements, but not evidence against the creditors, without other distinct proof.
Reason and policy, I think, demand other proof than such recital.
However desirable it may be to secure to this lady her property, which she had a right to expect would have been secu*492red to her, I feel constrained to say that the deed of trust to ■Satterthwaite is void as against the creditors, all of whose debts were m existence at the date of that deed.
As against the husband and all claiming under him, except •such creditors, the deed is valid, and the trusts therein contained must be fulfilled and executed.