US SUPREME COURT DECISIONS

H., in contemplation of marriage with B., gave a bond for $5,000 and interest, to trustees, to secure to B. a support during the marriage, and after the death of H., in case she should survive him, and to their child or children in case he should survive her, with condition that if H. should, within the time of his life or within one year after marriage (whichsoever of the said terms should first expire) convey to the trustee some good estate, real or personal, sufficient to secure the annual payment of $300 for the separate use of his wife during the marriage, and also sufficient to secure the payment of the said $5,000 to her use in case she should survive her husband, to be paid within six months after his death, and in case of her death before her husband, to be paid to their child or children, or if H. should die before B. and by his will should, within a year from its date, make such devises and bequests as should be adequate to these provisions, then the bond to be void. H. died, leaving his widow B. and a son, having, by his last will devised a tract of 1,000 acres of land in the Mississippi Territory, to his son in fee; a tract of 10,000 acres in Kentucky, equally between his wife and son, with a devise over to her in fee of the son's moiety, if he died before he attained "the lawful age to will it away." And the residue of his estate, real and personal, to be divided equally between his wife and son, with the same contingent devise over to her as with regard to the tract of 10,000 acres of land. The value of the property thus devised to her, beside the contingent interest, might have been estimated, at the time of H.'s death, at $5,000. B. subsequently died, having made a nuncupative will by which she devised all her estate, "whether vested in her by the will of her deceased husband or otherwise," to be divided between her son and the plaintiff below (Bryant), with a contingent devise of the whole to the survivor. The son afterwards died, and the plaintiff brought this bill to charge the lands of H. with the payment of the bond for $5,000 and interest, to which the plaintiff derived his right under the nuncupative will of B.

By the laws of Kentucky, this will did not pass the real estate of the testator, but was sufficient to pass her personal estate, including the bond.

Held that the provision made in the will of H. for his wife, must be taken in satisfaction of the bond, but subject to her liberty to elect between the provision under the will and the bond, and that this privilege was extended to her devisee, the plaintiff.

Actual maintenance is equivalent to the payment of a sum secured for separate maintenance, and therefore interest upon the bond during the husband's lifetime was not allowed.

Under all the circumstances of the case, it was determined that the bond was chargeable on the residue of the estate, and of this the personalty first in order. chanrobles.com-red

Page 15 U. S. 33