tion of the Supreme Court of Pennsylvania. (a) Equity will carry into effect the will of a feme covert, disposing of her real estate in favor of her husband, or other persons than her heirs at law, provided the will be in pursuance of a power reserved to her in and by the antenuptial agreement with her husband.1

(5.) Marriage settlements.

A volun-
Equity

With respect to antenuptial agreements, equity will grant its aid, and enforce a specific performance of them, provided the agreement be fair and valid, and the intention of the parties consistent with the principles and the policy of the law. tary deed is made good by a subsequent marriage. (b) will execute covenants in marriage articles at the instance of any person who is within the influence of the marriage consideration, and in favor of collateral relations, as all such persons rest their claims on the ground of valuable * consideration. (a)1 * 173 The husband and wife, and their issue, are all of them considered as within that influence, and, at the instance of any of them, equity will enforce a specific performance of the articles. (b)

(a) 10 Serg. & Rawle, 447.

(b) See infra, vol. iv. 463.

(a) Pulvertoft v. Pulvertoft, 18 Vesey, 92.

(b) Osgood v. Strode, 2 P. Wms. 255. Bradish v. Gibbs, 3 Johns. Ch. 550. But if the settlement be made through the instrumentality of a party whose concurrence is

1 In Massachusetts, a married woman may dispose of her separate property by will, but it shall not operate to deprive her husband of his rights as tenant by the curtesy; and she shall not bequeath away from him more than half of her personal property, without his written consent. Mass. Laws, 1855, c. 304.

2 When a marriage was had on the faith of a parol representation as to a settlement, the court decreed a settlement conformably to the representations, on the application of grandchildren and against the representatives of the person who made the representations. Prole v. Soady, 2 Giff. 1. And see Hammersley v. De Biel, 12 Cl. & F. 45. A settlement of the husband's property, actually made before marriage, was sustained against the husband's then existing creditors, although the wife was aware of his pecuniary embarrassments, it appearing that there had been a long engagement, and that the marriage was not entered into as a mere contrivance to defraud creditors. Fraser v. Thompson, 1 Giff. 49. An expectation as devisee of one yet living may be settled on marriage. In re Wilson's Estate, 2 Barr, 325. Marriage articles entered into by a wife, when a minor, may be ratified by her and her successors in estate. Whichcote v. Lyle, 28 Penn. (State) 73.

1 The rule, in a late case, was stated to be, that, if from the circumstances or the instrument, it appears to have been intended that the collateral relatives, in a given event, should take the estate, and there be a proper limitation to that effect, a court of equity will enforce the trust for their benefit. Neves v. Scott, 9 How. U. S. 196, 210. Eaton v. Tillinghast, 4 R. I. 276.

Settlements after marriage, if made in pursuance of an agreement in writing entered into prior to the marriage, are valid, both against creditors and purchasers. The marriage is itself a valuable consideration for the agreement, and sufficient to give validity to the settlement. This was so decided in the case of Reade v. Livingston; (c) and it was there held, that voluntary settlements after marriage, upon the wife or children, and without any valid agreement previous to the marriage to support them, were void as against creditors existing when the settlements were made. (d1) But if the person be not indebted at the time, then it is settled that the post-nuptial voluntary settlement upon the wife or chil

necessary to the validity of the settlement, such person is held not to be a mere volunreer, but falls within the range of the consideration of the agreement. Neves v. Scott, U. S. C. C. for Georgia, Law Reporter, Boston, for June, 1846, No. 9, p. 67. An antenuptial settlement, founded on a valuable consideration, such, for instance, as marriage, cannot be affected by fraud in the settler, if the other party be innocent. Magniac v. Thomson, 7 Peters U. S. 348. In North and South Carolina and Tennessee, the registration of marriage settlements and contracts is required by statute, in order to render them valid as a lien on the property of the settler as against creditors. 2 Dev. & Batt. Eq. 46. 1 Rev. Stat. (N. C.) 1837, p. 233. Statute of Tennessee, 1831.2

(c) 3 Johns. Ch. 481. Thomson v. Dougherty, 12 Serg. & Rawle, 448, and Magniac v. Thompson, 1 Bald. C. C. U. S. 344. Duffy v. The Ins. Company, 8 Watts & Serg. 413, S. P.

(d) A post-nuptial settlement, founded on a parol agreement before marriage, was good against creditors prior to the statute of frauds, and the marriage was the valuable consideration which sustained it. Griffin v. Stanhope, Cro. J. 454. Ralph Bovy's case, 1 Vent. 194. Lavender v. Blackstone, 2 Lev. 146. But, though good at law, a specific performance would not be enforced in equity, unless the agreement was confessed by the party in his answer, or there had been a part performance. Sugden on Vendors, 107, 108. 2 Story Eq. Jur. 62. Nor, of course, will equity enforce it since the statute, though the marriage takes place in pursuance of it, unless in cases of fraud. Montacute v. Maxwell, 1 P. Wms. 618. S. C. Str. 236. There must be some evidence in writing of the previous parol promise before marriage. It is doubtful whether a recital in a postnuptial settlement of a previous parol agreement before marriage, be sufficient to take the case out of the statute. It may be sufficient as against parties, and not as against creditors. See the cases of Beaumont v. Thorpe, 1 Vesey, 27; Dundas v. Dutens, 1 Vesey Jr. 199; 2 Cox, 235; Reade v. Livingston, 3 Johns. Ch. 481. And see the American Law Magazine for July, 1843, art. 2, (vol. i. p. 302,) where the subject is critically and learnedly discussed.

This is also the law in Georgia. Reinhart v. Miller, 22 Geo. 402.

3 A husband, having sold the wife's lands under an agreement to purchase lands of equal value for her benefit, and having accordingly made such purchase, and caused the conveyance to be made to his wife: held, that these lands were not subject to his debts contracted subsequently to his payments for the lands. Barnett v. Goings, 8 Blackf. 284.

Wray's Trusts, 15 E. L. & Eq. 265. Borst v. Corey, 16 Barb. (N. Y.) 136. Albert v. Winn, 5 Maryl. 66. Kinnard v. Daniel, 13 B. Mon. (Ky.) 496.

dren, if made without any fraudulent intent, is valid against subsequent creditors. This was not only the doctrine in Reade v. Livingston, and deduced from the English authorities, but it has since received the sanction of the Supreme Court of the United States, in the case of Sexton v. Wheaton. (e) 5

A settlement after marriage may be good, if made upon a valuable consideration. Thus, if the husband makes a settlement upon the wife, in consideration of receiving from the trustees of the wife, possession of her equitable property, that will be a sufficient consideration to give validity to the settlement, if it was a case in which a court of equity would have directed a settlement out of the equitable estate itself, in case the husband had sought the aid of the court, in order to get * possession of *174 it. (a) The settlement made after marriage between the husband and wife may be good, provided the settler has received a fair and reasonable consideration in value for the thing settled, so as to repel the presumption of fraud. It is a sufficient consideration to support such a settlement, that the wife relinquishes her own estate, or agrees to make a charge upon it for the benefit of her husband, or even if she agree to part with a contingent interest. (b) But the amount of the consideration must be such as to bear a reasonable proportion to the value of the thing settled; and, when valid, these post-nuptial settlements will prevail against existing creditors and subsequent purchasers. (c) A settlement upon a meritorious consideration, or one not strictly valuable, but founded on some moral consideration, as gratitude, benevolence, or charity, will be good against the settler and his heirs; but whether it would be good as against creditors and purchasers, does not seem to be entirely settled, though the weight of

(e) 8 Wheaton, 229. Picquet v. Swan, 4 Mason, 443, S. P.

(a) Moore v. Rycault, Prec. in Ch. 22. Brown v. Jones, 1 Atk. 190. Middlecome v. Marlow, 2 Atk. 519. Picquét v. Swan, 4 Mason, 443.

(b) Ward v. Shallett, 2 Vesey, 16.

(c) Lady Arundell v. Phipps, 10 Vesey, 139. Bullard v. Briggs, 7 Pick. 533.

Jewell v. Porter, 11 Foster, 34.

1 A wife's release of dower, in a conveyance of her husband's real estate, is a valuable consideration, and money paid for it may be secured to her through a trustee. Hale v. Plummer, 6 Ind. 121. Andrews v. Andrews, 28 Ala. 432. Although a deed from a husband to his wife is void in law, such a grant will be upheld in equity, where the wife, in good faith and for a valuable consideration, paid out of her separate estate, purchased the land conveyed to her. Simmons v. McElwain, 26 Barb. (N. Y.) 420.

opinion and the policy of the law would rather seem to be against their validity in such a case.2

If the wife, previous to marriage, makes a settlement of either her real or personal estate, it is a settlement in derogation of the marital rights, and it will depend upon circumstances, whether it be valid. (d) Where the wife, before marriage, transferred her entire estate, by deed, to trustees, who were to permit her to receive the profits during life, and no power was reserved over the principal except the jus disponendi by will, a court of equity has refused, after the marriage, to modify the trust, or sustain a bill

*

for that purpose against the trustees by the husband and *175 wife. (e) In case the settlement be upon herself, her children, or any third person, it will be good in equity, if made with the knowledge of her husband. If he be actually a party to the settlement, a court of equity will not avoid it, though he be an infant at the time it was made. (a)1 But if the wife was guilty of any fraud upon her husband, as by inducing him to suppose he would become possessed of her property, he may avoid

(d) St. George v. Wake, 1 My. & K. 610. Bill v. Cureton, 2 Ib. 503. (e) Lowry v. Tiernan, 2 Harr. & Gill, 34.

(a) Slocombe v. Glubb, 2 Bro. C. C. 545.

It was held, in Wells v. Treadwell, 28 Miss. (6 Cush.) 717, that a deed of gift directly from a husband to a wife, where there is no ground to suspect fraud, and it only amounts to a reasonable provision for the wife, is valid in equity against the claims of the husband of his representatives. And see Riley v. Riley, 25 Conn. 154.

So, if she convey away her property. Fletcher v. Ashley, 6 Gratt. 332. Cheshire v. Payne, 16 B. Mon. (Ky.) 618. The evidence must show fraud. O'Neill v. Cole, 4 Maryl. Ch. 107. As in other cases, the registration of the deed of conveyance must be regarded as constructive notice to the intended husband. Cole v. O'Neill, 3 Maryl. Ch. 174. It is not necessary that a husband should prove actual fraud or deception; but his equity to set aside her settlement may be precluded by his conduct, whereby she is deprived of the power of retiring from the marriage, or of stipulating for a settlement. Taylor v. Pugh, 1 Hare, 608. For circumstances under which such settlement was held valid, see Cheshire v. Payne, 16 B. Mon. (Ky.) 618.

+ In McDonnell v. Hesilrige, 15 E. L. & Eq. 587, a woman while sole, in contemplation of marriage, assigned the whole of her property to trustees for the benefit of herself until the marriage, if any; or in case no such marriage should be solemnized; and after the solemnization, if any, of the same marriage, upon trust for her; and after her decease, in case she should marry and have issue, upon trust for her children. Another marriage than the one contemplated took place; it was held, that the trusts arose on the vesting of the fund in the trustees; and that they could not, at the request of the settler, allow any part of the fund to be withdrawn.

1 In the absence of fraud, a marriage settlement will not be reformed on the ground of mistake, unless it appear that both parties were mistaken. Sells v. Sells, 1 Drew. & Sm.

the settlement, whether it be upon herself, her children, or any other person. (b) If the settlement be upon children of a former husband, and there be no imposition practised upon the husband, the settlement would be valid, without notice; (c) and it would seem from the opinion of the lord chancellor, in King v. Colton, that such a settlement, even in favor of a stranger, might be equally good under the like circumstances. It is a general rule, without any exception, that whenever any agreement is entered into for the purpose of altering the terms of a previous marriage agreement, by some only of the persons who are parties to the marriage agreement, such subsequent agreement is deemed fraudulent and void. The fraud consists in disappointing the hopes and expectations raised by the marriage treaty.

It is a material consideration, respecting marriage settlements, whether they are made before or after marriage; and if after marriage, whether upon a voluntary separation, by mutual agreement, between the husband and wife. Lord Eldon, in St. John v. St. John, (d) intimated that a settlement by way of separate maintenance, on a voluntary separation of husband and wife, was against the policy of the law, and void; and he made no distinction between settlements *resting on articles, and a *176 final complete settlement by deed; or between the cases where a trustee indemnified the husband against the wife's debts, and where there was no such indemnity. The ground of his opinion was, that such settlements, creating a separate maintenance by voluntary agreement between husband and wife, were in their consequences destructive to the indissoluble nature and the sanctity of the marriage contract; and he considered the question to be the gravest and most momentous to the public interest that could fall under discussion in a court of justice. Afterwards, in Worrall v. Jacob, (a) Sir William Grant said he apprehended it to be settled, that chancery would not carry into execution articles

(b) Buller J., and Lord Ch. Thurlow, in Strathmore v. Bowes, 2 Bro. C. C. 345. 1 Vesey, 22, S. C. Goddard v. Snow, 1 Russell, 485. Howard v. Hooker, 2 Rep. in Ch. 81. St. George v. Wake, 1 My. & K. 610. Secret and voluntary conveyances by a woman, in contemplation of marriage, are a fraud upon the marital rights and void. Tucker v. Andrews, 13 Maine, 124, 128. Jordan v. Black, Meigs (Tenn.) 142. Ramsay v. Joyce, 1 McMullan Eq. (S. C.) 236. Logan v. Simmons, 3 Ired. Eq. (N. C.) 487. (c) King v. Colton, 2 P. Wms. 674. Jones v. Cole, 2 Bailey Eq. (S. C.) 330. (d) 11 Vesey, 530. Beach v. Beach, 2 Hill (S. C.) 260, S. P.

(a) 3 Meriv. 256, 268.