526 HIGH COURT OF CHANCERY.

a valid agreement before marriage, may be good and binding
as against the creditors of the husband. But this is not the
case of a settlement either before or after marriage. Here
there has been no settlement at all, and the question is, whether
this particular parcel of land is so impressed with a trust for
the benefit of Mrs. Brawner, as to protect it from the claims of
the,creditors of her husband.

It is, to be sure, contended by the counsel of Mrs. Brawner,
that she claims the legal title under the devise to her in the
will. But, if she rests her defence upon that title, she must be
regarded as a volunteer, and take subject to the claims of cred-
itors; though, in marshalling the assets, the estate devised to
her, could not be reached until the descended lands, if any, are
first disposed of. 4 Kenfs Corn; 421; Chase vs. Lockerman,
11 G. & J., 185.

It is to be observed, that the only proof of the agreement is
to be found in the parol declaration of the husband, made dur-
,<• ing the coverture, and it needs but -little consideration to show
how dangerous it would be to allow such evidence to defeat
the rights of creditors. The observations of Chancellor Kent
upon this subject, in the case of Reade vs. Livingston, 3 Johns.
Ch. Rep., 488, are full of instruction.

The objection is not placed upon the ground that the agree-
ment was by parol, because, though by parol, still, if carried
into effect on the part of the wife, by selling her maiden estate,
she would have an equity as against the husband or his heirs,
to have it carried into effect on their side; and the statute of
frauds would interpose no obstacle. The objection is, that the
proof of the agreement is derived exclusively from declarations
made by the husband during the coverture; the admissibility
of which declarations, for such a purpose, in opposition to the
rights of creditors, it seems to me, is very questionable.

But, waiving that objection, and supposing the agreement
set up in the answer was in proof by a witness who was pres-
ent when it was made, I am still of opinion, that, as against
the creditors of the husband, and particularly those who be-
came such after the title to the land was vested in him, it can-
not be allowed to stand.