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2 Paige Ch. 303

Smith v. Kane

New York Court of Chancery

Decided September 7, 1830

New York Court of Chancery · decided 1830-09-07

The bill in this case was filed by certain judgment creditr ors of Kane and Smith, who had proceeded to execution against them without obtaining satisfaction of their debts. Kane had been convicted of forgery, and sentenced to imprisonment in the state prison. The principal object of the bill was to reach certain monies claimed by his wife, and an injunction had been obtained to prevent her from using the same for the support of herself and children.

Decided 1830-09-07

The Chancellor.

¶1From the answer of the defendant E. Kane, it satisfactorily appears that she has the equitable right to the money in the hands of Alexander, for the support of herself and children. It was a debt due to the wife before her .marriage with Kane, and he has never reduced it into possession. By the consent of her husband, and in pursuance of a verbal antenuptial contract, she has been permitted to preserve this small fund as her separate property. In such a case this court would not aid the husband in ob*304taining this money from her or her depositary; and his- creditors or general assignees can have no greater equities. (Hornsby v. Lee, 2 Mad. Rep. 16. Gayner v. Wilkinson, 2 Dick. 491. Ex parte Beilby, 1 Glyn & Jam. 167. Udall v. Kenney, 3 Cowen, 590.) When an execution creditor comes into this court to reach property , of the husband which is - not subject to execution at law, he must take it subject to the wife’s .equity, which she had -a right to insist on as "against her husband.

¶2The property in controversy here being wholly insufficient for the support of the wife and her children, and she having the prior equity, the injunction must be dissolved.

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