ATKINSON VS. PHILLIPS. 511

doctrine, as Mr. Justice Story says, was asserted in a case
where the conveyance was sought to be set aside by persons
claiming under judgment creditors upon antecedent debts. 1
6'tory's Eq., sec. 362.

If the high authority of the Supreme Court required any sup-
port, it would be found in the cases cited by the writer, (in
note 21 to this section,) and particularly in the case of Ver-
planck vs. Story, 12 Johns. Rep., 536, in which Mr. Justice
Spencer, in delivering the opinion of the court, said, "if the
person making a settlement is insolvent or in doubtful circum-
stances, the settlement comes within the statute of 13th Eliza-
beth, ch. 5. But if the grantor be not indebted to such a de-
gree as that the settlement will deprive the creditors of an
ample fund for the payment of their debts, the consideration
of natural love and affection will support the deed, although a
voluntary one, against creditors, for, in the language of the
decisions, 'it is free from the imputation of fraud.' "

These decisions, thus modifying and mitigating the rule upon
this subject, as laid down by Chancellor Kent, in the case re-
ferred to, are quite in accordance with the doctrine held by the
Court of Appeals of this state, in Jones vs. flluhy, 5 H. & J.,
372, and appear to me to be so perfectly reasonable and judici-
ous, that I should be disposed to adopt and follow them, even
if opposed by authorities equally imposing.

That the grantor, Spindler, was la'rgely indebted at the period
of the execution of the deed of the 27th March, 1834, is n<l
denied by his answer, and is, moreover, abundantly established
by the evidence. If not actually, at that time, insolvent, he
was unquestionably in precarious circumstances, and although
he alleges that he retained ample means to pay his debts, no
attempt has been made to prove the existence of such means,
and the burden of proof to repel the fraud presumable from the
condition of the grantor at the time, is clearly upon the parties
claiming under the deed. Birely vs. Staley, 5 G. & J, 432.

My opinion, therefore, is, that this deed of the 27th of March,
1834, is void as to creditors under the statute of Elizabeth, being
purely voluntary, having been made by a party shown to have