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a certain benefit out of his estate, he will be bound in equity to perform his agreement, even though it was entered into with the wife herself, and became suspended at law by his subsequent marriage. (6) Gifts from the husband to the wife may be supported as her separate property, if they be not prejudicial to creditors, even without the intervention of trustees; (c) 6 and where the husband, after marriage, agreed, in writing, to settle part of the wife's property upon her, the agreement was held to enure to the benefit of the children, and that the wife herself could not waive it. (d)
Stuart 1. Kirkwall, 3 Madd. (387) 200, Am. ed. The cases on this point are contradictory. The Court of Chancery never provides for the children, while the wife is living, out of her separate property. She is not bound to provide for the children, or her husband, out of the property settled to her separate use. The husband is left to maintain her and the children. In the case of Anne Walker, Cases temp. Sugden by Lloyd & Goold, pp. 299, 328, 332.4
(6) It is to be considered as well settled, say the court in Stilley v. Folger, 14 Ohio, 649, that almost any bonâ fide and reasonable agreement, made before marriage, to secure the wife either in the enjoyment of her own property or a portion of that of her husband, whether during coverture or after his death, will be carried into execution in chancery. Wiley v. Gray, 36 Miss. 510.
(c) Case of the Countess Cowper, before Sir Joseph Jekyll, cited in 1 Atk. 271. 3 Ibid. 293. Slanning v. Style, 3 P. Wms. 334. More v. Freeman, Bunb. 205. Lucas v. Lucas, 1 Atk. 270. 3 Ibid. 393. Brinkman v. Brinkman, cited in 3 Atk. 394. Rich v. Cockell, 9 Vesey, 369. Walter v. Hodge, 2 Swanst. 97. S. C. 1 Wilson Ch. 445. Neufville v. Thompson, 3 Edw. Ch. 92. Taylor Ch. J., in Lilies v. Fleming, 1 Dev. Eq. 187. The English statute of 3 & 4 Wm. IV. has now given sanction to this doctrine, and the husband is allowed to make a conveyance to his wife without the intervention of a trustee. In Maloney v. Kennedy, 10 Sim. 254, it was held, that where there are dividends on property settled to the separate use of the wife, and she makes no disposition of them by will, they pass by law to the husband in his marital right. The money must remain in the hands of trustees, to protect it from the husband.
In Graham v. Londonderry, 3 Atk. 303, it was held, that a gift to a wife by a third person, or by the husband, is construed to be a gift to her separate use, and she is en. titled to the same in her own right as her separate estate; but mere ornaments for her parlor are considered as paraphernalia, and the husband may alien them in his lifetime; but if he only pledges them, and on his death leaves personal estate sufficient to pay his debts and redeem them, the widow is entitled to that redemption.
(d) Fenner v. Taylor, 1 Sim. 169. In South Carolina, all marriage settlements, ante
4 See Maver v. Galluchat, 6 Rich. Eq. 1. Callahan v. Patterson, 4 Texas, 61. Wylly v. Collins, 9 Geo. 223. Tupper r. Fuller, 7 Rich. Eq. 170.
6 Marriage articles between the guardians of an infant and her intended husband are not obligatory on her. Healy v. Rowan, 5 Gratt, 414.
6 Barron v. Barron, 24 Vermont, 375. Though an insolvent husband cannot give property to his wife, he may give his personal services, and her estate will not be made chargeable to his creditors. Hoot v. Sorrell, 11 Ala. 386. So he may secure to her sole and separate use the proceeds of his labor. Hodges e. Cobb, 8 Rich. 50. See Messenger v. Clark, Eng. Law Journal, Esch. p. 306, Oct. 1850.
The wife being enabled in equity to act upon property in the hands of her trustees, she is treated in that court as having interests and obligations distinct from those of her husband. * She may institute a suit by her next friend, and she may * 164 obtain an order to defend separately suits against her; and, when compelled to sue her husband in equity, the court may order him to make her a reasonable allowance in money to carry on the suit. (a)
(2.) Her power under settlements.
The general grounds upon which equity allows a wife to institute a suit against her husband, are when anything is given to her separate use, or her husband refuses to perform marriage articles, or articles for a separate maintenance; or where the wife, being deserted by her husband, hath acquired by her labor a separate property, of which he has plundered her. The acquisitions of the wife, in such a case, are her separate property, and she may dispose of them by will or otherwise. (6) It is the settled rule in equity, that a feme covert, in regard to her separate property, is considered a feme sole, and may, by her contracts, bind such separate estate. The power of appointment is incident to the power
nuptial, or post-nuptial, are required, by statute of 1823, to be recorded within three months after their execution; and any settlement of property by the husband on the wife after marriage, is a post-nuptial settlement within the rule. In default of such record, the marriage settlement is declared void. Marriage settlements, strictly speaking, are those settlements only, whether made before or after marriage, which are made in consideration of marriage only; but the statute of South Carolina was intended to apply to all post-nuptial settlements on the wife. Price v. White and others, Carolina Law Journal, No. 3. See, also, in the same work, p. 352, an essay on the Registry Acts of South Carolina, pointing out their imperfections, and suggesting amendments. The Act of South Carolina of 1792, required all marriage contracts and settlements to specify, either in the instrument or in a schedule annexed, the property intended to be settled, and, in default thereof, the settlement is void as to creditors and purchasers. In Virginia, deeds of settlement upon marriage, wherein either lands, slaves, or personal property shall be settled, or covenanted to be left or paid at the death of the party, or otherwise, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless acknowledged or proved, and recorded, &c. 1 Revised Code, ch. 99, sec. 4. If not recorded, they are void only as against the creditors of the wife. Land v. Jeffries, 5 Rand. 211. Pierce v. Turner, 5 Cranch, 154.
(a) Mix v. Mix, 1 Johns. Ch. 108. Denton v. Denton, Ibid. 364, 441. Wilson v. Wilson, 2 Hagg. Cons. 203. N. Y. Revised Statutes, vol. ii. p. 148, sec. 58.
(b) Cecil v. Juxon, 1 Atk. 278. Starrett v. Winn, 17 Serg. & Rawle, 130.
1 The F. Ins. Co.v. Bay, 4 Barb. (N. Y.) 407, affirmed in the Court of Appeals, 4 Comst. 9.
of enjoyment of her separate property. It is sufficient that there is an intention to charge her separate estate, and the contract of a debt by her during coverture, is a presumption of that intention; and the later decisions held her separate estate responsible, without showing any promise. Her contract amounts to an appointment. (c) Though a woman may be proceeded against in equity without her husband, and though her separate estate be liable for her debts dum sola, yet the court cannot make a personal decree against her for the payment of a debt. All it can do is, to call forth her separate personal property in the hands of trustees, and to direct the application of it. (d) 3 When the wife has separate
(c) 2 Story Eq. Jur. 628, 773. Gardner v. Gardner, 22 Wendell, 528. Mallory v. Vanderheyden, by Vice-Chancellor Parker, of the 3d circuit. N. Y. Legal Observer, No. 4, January 7th, 1846. The ground on which a creditor may proceed against the separate estate of a married woman, for a debt not charged upon her estate, pursuant to a deed of settlement, must be by showing that the debt was contracted for the benefit of her separate estate, or for her own benefit, upon the credit of the separate estate. Curtis v. Engel, 2 Sandf. Ch. 287, 288. .
(d) Hulme v. Tenant, 1 Bro. C. C. 16. Norton v. Turville, 2 P. Wms. 144. Lillia v.
Strong v. Skinner, 4 Barb. (N. Y.) 546. Dickerman v. Abrahams, 21 Barb. (N. Y.) 551. But previously to the late Married Women's Property Acts, in New York, an instrument which conferred upon a wife the power to charge and dispose of her separate estate during coverture, as freely as if she were a feme sole, did not empower her to make a testamentary disposition of it. Wadhams v. Am. Home Miss. Society, 2 Kernan, 416, reversing the judgment in the Supreme Court. 10 Barb. (N. Y.) 597.
While the general rule of equity, as to the power of a married woman to charge her estate, under a settlement to her separate use, remains as stated in the text, under the Revised Statutes of New York, regulating trusts, such powers do not exist. In Noyes v. Blakeman, (3 Sandf. S. C. 531,) it is held, that, since the Revised Statutes, where real estate is settled to a married woman's separate use, neither the estate, nor the rents and profits, can be charged for any debt or liability created or imposed on it by her. It is no longer her estate. The whole estate is in the trustees, and her interest is inalienable. This decision was affirmed on appeal. Noyes v. Blakeman, 2 Seld. (N. Y.) 567.
• Vanderheyden v. Mallory, 1 Comst. 452. Where the debt is contracted before marriage, the remedy against the separate property of the wife is suspended by marriage. And a promise, by the husband and wife, to pay such debt out of funds other than her separate property, will not enable the creditor to reach the separate property, nor will a discharge of her husband under the bankrupt laws. The decision of this case, in 3 Barb. Ch. 9, so far as inconsistent with the foregoing, must be considered as reversed. But see Dickson v. Miller, 11 S. & M. 594.
3 Rogers v. Ludlow, 3 Sandf. Ch. 104. A debt contracted by a married woman is prima facie chargeable on her separate estate. Greenough v. Wiggington, 2 Greene. (Iowa,) 435. But the judgment must be in rem. It must charge her estate. Dickerman v. Abrahams, 21 Barb. (N. Y:) 551. She is not personally liable, though she has joined with her husband. Sweeney v. Smith, 15 B. Mon. (Ky.) 325; Lewis v. Yale, 4 Flor. 418. Where the credit is given exclusively to the married woman, for goods sold to her, it is held, in Georgia, that the promise of the husband to pay is void by the statute of frauds. Connerat v. Goldsmith, 6 Georgia, 14.
property, the relief afforded is by following it in the hands of trustees; and, in this way, courts of equity can attain a pure and perfect justice, which courts of law are unable to reach.
If, by marriage settlement, the real and personal estate of the wife be secured to her separate use, the husband is accountable for that part of it which comes to his hands; and a feme covert, with respect to her separate property, is to be considered a feme sole sub modo only, or to the extent of the * power * 165 clearly given her by the marriage settlement. Her power of disposition is to be exercised according to the mode prescribed in the deed or will under which she becomes entitled to the property; and if she has a power of appointment by will, she cannot appoint by deed; and if by deed, she cannot dispose of the property by a parol gift or contract. (a) These marriage settlements
Airey, 1 Vesey, 277. Lord Loughborough, 2 Vesey, 145. Dowling v. Maguire, 1 Lloyd & Goold, t. Plunkett, 19. Montgomery v. Eveleigh, 1 M'Cord Ch. 267. Maywood r. Johnson, 1 Hill Ch. 228. Vide post, 165, 166. Prater's Law of Husband and Wife, 109. North American Coal Company v. Dyett, 7 Paige, 1. Gardner v. Gardner, Ib. 112. If the wife has separate property, and lives apart from her husband, that property will be liable in equity to her contracts, though they do not specially refer to that property. Lord Kenyon, in Marshall v. Rutton, 8 Term, 545. Murray v. Barlee, 4 Sim. 82. Gardner v. Gardner, ut sup. and S. C. 22 Wendell, 526. In Bullpin v. Clark, 17 Vesey, 365, the master of the rolls decreed, that a debt by promissory note, given by a wife for money loaned to her for her separate use, be paid by her trustees out of her separate estate. So, in Stuart v. Kirkwall, 3 Madd. Ch. 387, a similar decree was made on a bill against husband and wife, on her acceptance of a bill of exchange, the vice-chancellor considering the act as an appointment by her pro tanto of her separate estate. The courts of equity in South Carolina have so far departed from the English doctrine, that the wife cannot, by her own act merely, charge the separate estate ; but the court will look into the circumstances, and see that a proper case existed, even if the appropriation was by herself, for the necessary support of herself and family. The husband cannot do it. Maywood v. Johnston, 1 Hill Ch. 236.
(a) The Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 450. 3 Ibid. 77. Lancaster v. Dolan, 1 Rawle, 231, 248. Thomas v. Folwell, 2 Wharton, 11. But in Vizon
" Courts of equity will not interfere to reform an instrument giving a wife a right of disposing of her property, except upon the most overwhelming proof. Rogers v. Smith, 4 Barr, 93.
Where a woman by the marriage settlement was secured the control of her personal property forever, and died without having made any disposition of it, it was held to have become absolutely the property of the husband. Brown v. Brown, 6 Humph. 127. See, also, Wilkinson o. Wright, 6 B. Mon. 576.
If a wife invest the proceeds of lands, of which, under the marriage settlement, she had the right of disposal, in other lands, it has been held that she has not a right to dispose of the subsequently acquired lands. Newlin v. Freeman, 4 Ired. Eq. 312. VOL. II.
are benignly intended to secure to the wife a certain support in every event, and to guard her against being overwhelmed by the misfortunes, or unkindness, or vices of her husband. They usually proceed from the prudence and foresight of friends, or the warm and anxious affection of parents; and, if fairly made, they ought to be supported according to the true intent and meaning of the instrument by which they are created. A court of equity will carry the intention of these settlements into effect, and not permit the intention to be defeated. These general principles pervade the numerous and complicated cases on the subject; though, it must be admitted, that those cases are sometimes discordant in the application of their doctrines, and perplexingly subtle in their distinctions. (6)
neau v. Pegram, 2 Leigh, 183, the doctrine declared was, that a feme covert, as to property settled to her separate use, was a feme sole, and had a right to dispose of her separate personal estate, and the profits of her separate real estate in the same manner as if she were a feme sole, unless her power of alienation be restrained by the instrument creating the separate estate.
(b) A gift of leasehold property was made to a daughter for her separate use, free from the control of any future husband, and she subsequently married without a settlement. She was held to be entitled, on a separation, to the leasehold property, for her separate use, and the marital right was excluded. Anderson v. Anderson, 2 My. & K. 427. This was decided by Sir John Leach, and affirmed by Lord Eldon. But a new doctrine on this subject has been recently started in England, and it has been held that gifts to a feme sole, or to trustees in trust for a feme sole, to her separate use, free from the control of any future husband, and not to be subject to his debts or disposition, are, as to such restraints, illegal and void, unless they be settlements made in immediate contemplation of marriage. A clause against anticipation annexed to such a gift is equally inoperative. Massey v. Parker, 2 My. & K. 174.2 It was also held, in Barton v. Briscoe, Jacob, 603, and in Benson v. Benson, 6 Sim. 126, that on a settlement in trust for the separate use of a married woman for life, the clause against anticipation became inoperative on the death of the husband, and no longer binding. And in Woodmeston v. Walker, 2 Russ. & My. 197, though the master of the rolls held that a gift of an annuity to a single woman, for her separate use, independent of any future husband, and with a restraint on the disposition of the same by anticipation, was valid and binding, in respect to a future marriage; yet Lord Ch. Brougham, on appeal, held, that the feme sole was entitled to the absolute disposal of the fund at once without any restraint. The object of these checks was only to exclude marital claims. He held the same doctrine in Brown v. Pocock, 5 Sim. 663. 2 Russ. & My. 210. i Coop. Sel. Ca. temp. Brougham, 70, S. C.; and so did Sir John Leach, in Acton v. White, 1 Sim. & Stu. 429. The principle declared by these cases in equity was, that unless the female to whom the gift be made be married at the time the interest vests, and the coverture be continuing down
? It is held in Fears v. Brooks, 12 Geo. 195, that the creation of a separate estate in a feme sole, though no marriage be in contemplation, will operate upon her subsequent marriage to exclude the husband's marital rights.