§ 984. There is, however, a distinction recognized in equity between executory trusts created under marriage articles, and those created under wills, in relation to the interpretation of them and the mode of carrying them into execution. In cases of marriage articles, courts of equity will, from the nature of the instrument, presume it to be intended for the protection and support to the interests of the issue of the marriage, and will, therefore, direct the articles to be executed in strict settlement, unless the contrary purpose clearly appear.1 For, otherwise, it would be in the power of the father to defeat the purpose of protecting and supporting such interests, and to appropriate the estate to himself. But, in executory trusts under wills, all the parties take from the mere bounty of the testator; and there is no presumption that the testator means one quantity of interest rather than another, an estate for life in the parent rather than an estate tail; for he has a right arbitrarily to give what estate he thinks fit, to the parent, or to the issue.2 If, therefore, the words of marriage articles limit an estate for life to the father, with remainder to the heirs of his body, courts of equity will decree a strict settlement, in conformity to the presumed intention of the parties. But if the like words occur in executory trusts created by a will, there is no ground for courts of equity to decree the execution of them in strict settlement, unless other words occur explanatory of the intent. The subject being a mere bounty, the intended extent of the bounty can be known only from the words in which it is conferred. If it is clearly ascertained from any thing in the will, that the testator did not mean to use the expressions which he has employed, in a technical sense, courts of equity, decreeing such a settlement as he has directed, will depart from his words in order to execute his intention. But they will follow his words, unless he has himself shown that he did not mean to use them in their proper sense; and they have never said that, merely because the direction was for an entail, they could execute that by decreeing a strict settlement.3

1

Atherly on Marr. Settlem. ch. 7, p. 93 to 101; ante, § 974.

2 1 Fonbl. Eq. B. 1, ch. 6, § 8; Jeremy on Eq. Jurisd. B. 1, ch. 1, § 2, p. 32 ; id. B. 3, Pt. 2, ch. 2, p. 379; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 550, 551, 554.

* Blackburn v. Stables, 2 Ves. & B. 370; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559, 571, 574; Lord Deerhurst v. Duke of St. Albans, 5 Mad. 260; Synge v. Hales, 2 B. & Beatt. There is some language of Lord Eldon

§ 985. In furtherance of the same beneficial purpose in favor of issue, courts of equity will construe an instrument which might, under one aspect, be treated as susceptible of a complete operation at law, to coutain merely executory marriage articles, if such an intent is apparent on the face of it; for this construction may be most important to the rights and interests of the issue. So an instrument, as to one part of the property comprised in it, may be construed to be a final legal marriage settlement; and as to other property merely to be executory marriage articles.2

§ 986. There is also a distinction in courts of equity as to the parties, in whose favor the provisions of marriage articles will be specifically executed, or not. The parties seeking a specific execution of such articles may be those who are strictly within the reach and influence of the consideration of the marriage, or claiming through them; such as the wife and issue, and those claiming under them; or they may be mere volunteers, for whom the settler is under no natural or moral obligation to provide, and yet who are included within the scope of the provisions in the marriage articles; such as his distant heirs or relatives, or mere strangers. Now, the distinction is, that marriage articles will be specifically executed upon the application of any persons within the scope of the consideration of the marriage, or claimin the Countess of Lincoln v. Duke of Newcastle, 12 Ves. 227 to 230, which might lead to the conclusion that he held that there was no distinction between executory trusts under marriage articles and those created by a will. In that case, he said: " There is no difference in the execution of an executory trust created by a will, and of a covenant in marriage articles, — such a distinction would shake to their foundation the rules of equity." But in Jervoise v. Duke of Northumberland (1 Jac. & Walk. 573), he corrected the misapprehension of his opinion, and said: "If it is supposed that I said there was no difference between marriage articles and executory trusts, and that they stood precisely on the same ground, I never meant to say so. In marriage articles, the object of such settlement, the issue to be provided for, the intention to provide for such issue, and, in short, all the considerations that belong peculiarly to them, afford primâ facie evidence of intent, which does not belong to executory trusts under wills."

1 Atherly on Marr. Sett. ch. 7, p. 121 to 622; White v. Thornborough, 2 Vern. 702. Cas. 30, and notes.

133; Trevor v. Trevor, 1 P. Will.

See 1 White & Tudor's Eq. Lead

2 Countess of Lincoln v. Duke of Newcastle, 12 Ves. 218; Vaughan v. Burslem, 3 Bro. Ch. 101, 106.

3 See Neves v. Scott, 9 Howard, U. S. 197; Dennison v. Gothring, 7 Barr, 175; King v. Whitely, 10 Paige, 465.

ing under such person; but not generally upon the application of mere volunteers. But where the bill is brought by persons. who are within the scope of the marriage consideration, or claiming under them, there, courts of equity will decree a specific execution throughout, as well in favor of the mere volunteers, as of the plaintiffs in the suit. So that, indirectly, mere volunteers may obtain the full benefit of the articles, in the cases where they could not directly insist upon such rights. The ground of this peculiarity is, that, when courts of equity execute such articles at all they execute them in toto and not partially.2

§ 987. It has been already stated, that, generally, marriage articles will not be decreed in favor of mere volunteers. But

3

See Atherly on Marr. Sett. ch. 5, p. 131 to 145; ante, § 433, 706 a, 793 a, 973; post, § 1040. [* Hence, where the parties in contemplation of marriage agreed that neither, after the death of one of them, should claim any thing that belonged to the other before marriage, it was held sufficient to bar the woman's right of dower, and a year's provision and distributive share in her husband's estate. Cauley v. Lawson, 5 Jones, Eq. 132.]

2

Atherly on Marr. Sett. ch. 5, p. 125 to 130; id. 131 to 135; Osgood v. Strode, 2 P. Will. 255, 256; Trevor v. Trevor, 1 P. Will. 622; Goring v. Nash, 3 Atk. 186, 190.

3 Ante, § 95, 169, 433, 706 a, 793, 793 a; West v. Erissey, 2 P. Will, 349; Kettleby v. Atwood, 1 Vern. 298, 471; Stevens v. Trueman, 1 Ves. 73; Williamson v. Codrington, 1 Ves. 512, 516; Colman v. Sarrel, 1 Ves. Jr. 50; s. c. 3 Bro. Ch. 13; Pulvertoft v. Pulvertoft, 18 Ves. 99; Ellison v. Ellison, 6 Ves. 662; Graham v. Graham, 1 Ves. Jr. 275; Wycherley v. Wycherley, 2 Eden, 177, and note; Bunn v. Winthrop, 1 Johns. Ch. 336, 337. This seems to be the general rule. But there are cases not easily reconcilable with it. See Vernon t. Vernon, 2 P. Will. 594; Williamson v. Codrington, 1 Ves. 512, 514; Stevens v. Trueman, 1 Ves. 73; 1 Mad. Pr. Ch. 326, 328; 1 Fonbl. Eq. B. 1, ch. 1, § 7, notes (v), (x); id. ch. 5, 2, note (h); 2 Fonbl. B. 2, ch. 5, § 2, and note (1). Lord Eldon, in Ellison v. Ellison, 6 Ves. 662, has stated the general doctrine in equity to be, that voluntary trusts, executed by a conveyance, will be held valid, and enforced in equity. But if the trust is executory, and rests merely in covenant, it will not be executed. The exception in favor of meritorious claimants, such as a wife or children, is admitted by the same learned judge in Pulvertoft v. Pulvertoft, 18 Ves. 99. Mr. Chancellor Kent, in Bunn v. Winthrop, 1 Johns. Ch. 336, 337, has examined many of the cases, and adopted Lord Eldon's conclusion. With respect to chattel interests, he maintains, that an agreement under seal imports a consideration at law; and that, therefore, a bond, though voluntary and without consideration, will support a decree for executing the trust; relying on Lechmere v. Earl of Carlisle, 3 P. Will. 222, and Beard v. Nuthall, 1 Vern. 427; ante, § 973, 979 a; Walwyn v. Coutts, 3 Meriv. 708. See also Minturn v. Seymour, 4 Johns. Ch. 500. Antrobus v. Smith, 12 Ves. 44 to 46, and Colman v. Sarrell, 1 Ves. Jr. 54, seem contra.

an exception seems formerly to have been entertained in favor of a wife and children, claiming as volunteers (such as a wife and children under a subsequent marriage, or under a voluntary contract made before or after marriage, and not in consideration thereof), upon the ground that the settler is under a natural and moral obligation to provide for them, upon the same principle which has been applied in favor of a wife and children in cases of a defective execution of powers.2 But against what persons courts of equity ought, in favor of a wife or children, to interfere, was a point which was thought to admit of more question. It was said, that they ought to interfere to enforce the specific execution of such voluntary contracts or voluntary articles, against the heir-at-law of the voluntary settler, unless, perhaps where he was a son wholly unprovided for. But, whether they ought to interfere against the settler himself in such a case, was a matter upon which there was more diversity of opinion and judgment. However, the whole doctrine seems now overthrown; and the general principle is established, that in no case whatsoever will courts of equity interfere in favor of mere volunteers, whether it be upon a voluntary contract, or a covenant, or a settlement, however meritorious may be the consideration, and although they stand in the relation of a wife or child.3

[* § 987 a. But where the parent, or his agent, or any friend and patron of the woman, holds out considerations of a pecuniary nature to induce the marriage and a settlement upon the lady, in faith of which the marriage and settlement take place, a court of equity will compel the party holding out such inducements to make them good. And it has been held that a settlement, after marriage, of the wife's property, reciting a parol agreement,

1 Atherly on Marriage Sett. ch. 5, p. 131 to 139; Osgood v. Strode, 2 P. Will. 245; Ithill v. Beane, 1 Ves. 216; Roe v. Mitton, 2 Wils. 356; Goring v. Nash, 3 Atk. 186; Pulvertoft v. Pulvertoft, 18 Ves. 99; Ellison v. Ellison, 6 Ves. 662; ante, § 433, 706 a. 787, 793 a, 973; Ellis v. Nimmo, 1 Lloyd & Goold, 333. But see Holloway v. Headington, 8 Sim. 324, 325; Jefferys v. Jefferys, 1 Craig & Phillips, 138, 141; Moore v. Crofton, 3 Jones & Lat. 438. 2 Ante, § 95, 169, 170, and note.

3 Holloway v. Headington, 8 Simons, 325; Jefferys v. Jefferys, 1 Craig & Phillips, 138, 141; ante, § 433, 706, 706 a, 787, 793, 793 b, 973; post, § 1040 a.

4 [* Hammersley v. Baron De Biel, 12 Cl. & Fin. 45. This subject is very learnedly discussed by the Law Lords, who gave opinions in this case.

before marriage, to make such settlement, is valid against the creditors of the husband.1 But in a very late case before the Lord-Chancellor, Cranworth, on appeal from the Master of the Rolls, where the husband and wife, in contemplation of marriage, agreed upon the settlement of her property, upon herself and children, and went to a solicitor for that purpose, who being unable to complete it before the time fixed for the marriage, the husband told her it would be equally valid if executed subsequent to the marriage, which he promised to do, and did execute a settlement in conformity to their agreement, shortly after the marriage had taken place, in confidence of the foregoing assurances; it was held that the settlement was fraudulent and void as against creditors, being voluntary on the part of the husband, the wife having no equity as against her husband's creditors.2 We do not purpose to review the cases upon this subject at the present time. But it is obvious that this last case of Warden v. Jones trenches very essentially upon the principle of some of the earlier cases. It had always been considered that the wife, so long as her property was kept separate, and especially where this was done in pursuance of an antenuptial parol agreement, between herself and her husband, which had been reduced to writing subsequent to the marriage, had an equity which the courts of equity would protect against the creditors of the husband. It seems very idle, not to say frivolous, to attempt any distinction. between the case where the settlement recites the parol agreement, and where it is made in fulfilment of such contract, but without reciting it, as is suggested in Warden v. Jones. It seems to be admitted here, that, if the husband were guilty of an inten

1 Dundas v. Dutens, 2 Cox, 235.

* Warden v. Jones, 2 De G. & J. 76. See also Spurgeon v. Collier, 1 Eden, 61; Lassence v. Tierney, 1 Mac. & G. 551; Randall v. Morgan, 12 Ves. 73; Surcome v. Pinniger, 3 De G., M. & G. 571; Jordan v. Money, 5 H. Lords Cas. 185; Page v. Horne, 11 Beavan, 227; Kinderley v. Jervis, 22 Beavan, 1; Wildman v. Wildman, 9 Vesey, 174; Ryland v. Smith, 1 My. & Cr. 53; Battersbee v. Farrington, 1 Swanst. 106; Lavender v. Blackstone, 2 Lev. 146; ante, § 374, and notes.

3 Merrill's Administrator v. Merrill's Heirs, 32 Vermont, 27; see also Caldwell v. Renfrew, 33 Vt. 213. The case of Warden v. Jones is questioned in England, and was, we believe, decided against sound legal principle, as we are sure it was against the instinctive sense of justice. See London Jurist, Feb. 12, 1859. See also Barkworth v. Young, 3 Jur. N. s. 34, pt. 1. But see Turner v. Nye, 7 Allen, 176; Croft v. Wilbar, 7 Allen, 248.