compelled, when actions have been brought to recover the wife's property in the common law courts.1 This equity is believed to exist in all of the United States except New Hampshire and North Carolina, and it has also been recognized in the federal courts.2 In those States where the property of married women is secured to them by statute, the reasons for the existence of this right have passed away, and as such statutes exist in nearly all of the States of the Union, the subject is not of such practical importance as formerly ;3 and in England also the Married Woman's Property Act of 18704 has greatly diminished the necessity for the application of this doctrine. It is still, however, proper to say a few words concerning the wife's "equity to a settlement" (as it is termed), and to notice how it may be enforced, out of what property, against whom, and for whose benefit. When property of a married woman is vested in trustees, they may with perfect safety hand over the same to her husband, and take his receipt therefor, except, of course, in the case of property settled to her separate use; or where the common law rule has been altered by statute. The trustees may, if they choose, refuse to make payment to the husband; who is then obliged, in order to get in the fund, to come into court and to submit to his wife's right to a settlement. In such a case the trustees will not be liable to costs. The wife's equity to a settlement will also be recognized by the courts, in bills filed by the creditors of the husband to reach the wife's choses in action." If the husband has become the purchaser, as it were, of his wife's property by settlement before marriage, he will not be compelled to make any allowance for her out of her equitable 1 Rees v. Waters, 9 Watts, 94; Perry making a suitable provision for the wife; on Trusts, 629. 2 Ward v. Amory, 1 Curtis, 432; Tucker v. Andrews, 13 Maine, 124; Short v. Moore, 10 Verm. 446; Howard v. Moffatt, 2 John. Ch. 206; Wiles v. Wiles, 3 Maryl. 1; Poindexter v. Jeffries, 15 Grat. 363; Durr v. Bowyer, 2 McCord's Ch. 368; Andrews v. Jones, 10 Alab. 401; Davis v. Newton, 6 Met. 537. In Pennsylvania, it is enforced by preventing a recovery in a legal action, unless upon the terms of Rees v Waters, 9 Watts, 94. In New 3 See Perry on Trusts, 645, note 9. 6 Smith v. Kane, 2 Paige, 303; 1 Lead. Cas. Eq. 496. funds. In such a case he is considered to have acquired a right The wife cannot claim a settlement, if she has an adequate If a woman at the time of her marriage owes more than the amount of her property, she will not be entitled to a settlement ;5 but if the property exceeds the amount of her debts, she may be entitled to a settlement after provision has been made for the payment of her debts. A married woman may preclude herself from claiming her equity to a settlement by fraud, or by improper conduct, such as adultery.8 111. The wife may waive her right to a settlement, unless her children have already acquired an interest therein. This waiver takes place on a separate examination of the wife, by which it is ascertained that her consent is given of her own free will, and is not obtained from her by fraud or force. This consent cannot be taken if the wife is an infant.10 112. It is well settled that the equity to a settlement will attach to real estate, and to chattels real as well as to personal property; and it will attach to any property which becomes 1 Perry on Trusts, 635; Erskine's Trusts, 1 K. & J. 302. 2 Garforth v. Bradley, 2 Ves. 677. See Matter of Beresford, 1 Desaus. 263. 3 Hill on Trustees, 409; though see Dunkley v. Dunkley, 2 De G. M. & G. 390; and Matter of Beresford, 1 Desaus. 263. 7 Lush's Trusts, L. R. 4 Ch. App. 591. 8 Carr v. Eastabrooke, 4 Ves. 146; In re Lewin's Trust, 20 Beav. 378. 9 Beaumont v. Carter, 32 Beav. 586; 1 Lead. Cas. Eq. 468 (4th Eng. ed.). Examinations of a similar character are prescribed by statute in many States where a conveyance of the real estate of a feme Notes to Murray v. Lord Elibank, 1 covert is made. 5 Bonner v. Bonner, 17 Beav. 86. 6 Barnard v. Ford, L. R. 4 Ch. App. 247. 10 Stubbs v. Sargon, 2 Beav. 496; Abraham v. Newcombe, 12 Sim. 566. See, however, Jennings v. Jennings, 2 Heisk. 28. the subject of an equitable suit, even though it is legal in its nature.1 The equity to a settlement exists in respect of the wife's life interest as against an insolvent or bankrupt husband, or as against his general assignee in bankruptcy or insolvency. But not as against her husband who supports her; or as against his particular assignee for value,3 even if he does not support her. The assignment of the wife's life interest will be good only during coverture, and will not bind her if she survives. The court will not order a settlement of reversionary personal property of the wife." The court will not ordinarily settle the whole fund upon the wife. A half is considered a fair settlement.5 The whole may, however, be settled under special circumstances." 113. This equity is enforceable as against the husband and all persons claiming under him, whether they are assignees for value, or voluntary assignees, or assignees in bankruptcy. And this equity is paramount to the right of set-off which an executor or administrator, from whom a legacy or distributive share was due to the wife, has by reason of any indebtedness of the husband to the estate. This, however, must be subject to the qualification noticed above, that where the interest, out of which the settlement is sought, is a life estate, it cannot be enforced as against the husband if he supports the wife, or against his particular assignee for value. The reason of this exception is that the assignment of the life estate will be good only during coverture. The equity to a settlement is the privilege of the wife, and can be enforced only by her, and may be waived by her after a separate examination. Nevertheless, when made it will enure to the benefit of the children. The children, however, cannot assert the right themselves; and if the wife dies before decree, the husband will take.' 1 Perry on Trusts, 2 633. 2 Sturgis v. Champneys, 5 My. & Cr. 97; Vaughan v. Buck, 1 Sim. N. S. 284. See Beeman v. Cowser, 22 Ark. 429; Perry on Trusts, 634. Tidd v. Lister, 10 Hare, 140; 3 De G. M. & G. 857. See Sims v. Spaulding, 2 Duvall, 121. 4 Osborn v. Morgan, 9 Hare, 432. 7 Macaulay v. Philips, 4 Ves. 19. 9 Perry on Trusts, 627; 1 Lead. Cas. Eq. 375. When a person has committed a contempt by marrying a ward of the court, the court will order a settlement of her property to be made; and under such circumstances the settlement will be made to embrace her property of all kinds, legal as well as equitable, and will generally be of the whole estate.1 So, when the husband has misbehaved, or has become utterly insolvent, settlements of purely legal property have been enforced. These cases proceed upon somewhat different doctrines, however, from the pure equity to a settlement already considered.2 114. In considering the equitable doctrines which are applicable to the property of married women, the subject of gifts from the husband to the wife requires to be noticed. The existence of a married woman being supposed to be merged in that of her husband, a conveyance from the latter to the former at common law is of no effect. Deeds which operate at common law, and not under the statute of uses, pass no title to the wife. In equity, however, the rule is otherwise. Gifts from the husband to the wife will be upheld, and if the legal title does not pass out of the former, he will, nevertheless, be considered to be a trustee for his wife, and the transaction will be upheld. as a settlement. Equity, however, while upholding the gift, has thought it right to attach to it this qualification, viz., that the settlement must be a reasonable one. Equity will not assist the husband to impoverish himself for the sake of his wife. To do so would be to injure his credit, and to act unfairly towards those who might afterwards become his creditors. The settlement, therefore, must not be actually fraudulent; that is, it must not be made while he is in embarrassed circumstances, or about to engage in a hazardous business, or in any way be calculated to deceive and injure bona fide creditors; and it must be a reasonable proportion of his estate. What that proportion is, does not appear to be definitely settled.3 11 Lead. Cas. Eq. 496; Perry on Trusts, 631. 2 Perry on Trusts, 631. In some cases in the United States maintenance in the nature of alimony has been decreed by courts of equity. Purcell v. Purcell, 4 Hen. & Munf. 507; Paterson v. Pater son, 1 Hals. Ch. 389. In some States, jurisdiction in divorce is made a head of equitable relief. See statutes cited, ante, p. 18, et seq. 3 Sims v. Rickets, 35 Ind. 131; Benedict v. Montgomery, 7 Watts & Serg. 238; Coates v. Gerlach, 8 Wright (Pa.), 43. Contracts between husband and wife will sometimes be enforced in equity.1 And although, at common law, contracts between a man and woman would be extinguished by subsequent intermarriage, yet in equity the parties will be compelled to execute them. Of such contracts illustrations may be found in antenuptial contracts, made without the intervention of trustees.2 115. Before leaving the subject of trusts for married women, it will be proper to say a few words upon a kindred topic, namely, contracts for separation between husband and wife. It has been decided by the highest authority and in many cases that agreements for future separation are invalid, and such must be considered as the settled law both in England and in the United States.3 But agreements for immediate separation, although formerly discountenanced as against the policy of the law, are now sustained in England, and are looked upon with more favor in this country. In Wilson v. Wilson, it was decided by the House of Lords that the court of chancery might compel parties to articles for an agreement of separation, to execute a deed in pursuance thereof. The agreement, however, must be founded on a sufficient consideration; and the deed to be executed must not contain any conditions contrary to law, or in contravention of public policy." A covenant not to sue for the restoration of conjugal rights is a proper covenant to insert in a deed of separation, executed under a decree of the court, which directs articles of separation to be 1 Tennison v. Tennison, 46 Mo. 77; Bradish v. Gibbs, 3 Johns. Ch. 523; Livingston v. Livingston, 2 Id. 537; More v. Freeman, Bunb. R. 205. 2 See Neves v. Scott, 9 Howard, 196; Imlay v. Huntingdon, 20 Conn. 146; West v. Howard, Id. 581; De Barante v. Gott, 6 Barb. 492; Healy v. Rowan, 5 Grat. 414; Story's Eq. 1370. 3 Westmeath v. Westmeath, 1 Dow & C. 519. Note to Stapilton v. Stapilton, 2 Lead. Cas. Eq. 855 (4th Eng. edition), where the English authorities are col lected; Hill on Trustees, 668, 669 (4th Am. ed); Perry on Trusts, 672. In Hunt v. Hunt, 10 W. R. 215, the subject will be found most clearly explained by Lord Westbury. 41 H. L. Cas. 538; 5 Id. 40. See also Gibbs v. Harding, L. R, 5 Ch. App. 336. 5 Walrond v. Walrond, Johns. 18; Beach v. Beach, 2 Hill, 260; Griffin v. Banks, 37 New York, 623. 6 Vansittart v. Vansittart, 2 De G. & Jo. 255. |