A wife cannot devise her lands by will, for she is excepted out of the statute of wills; nor can she make a testament of chattels, except it be of those which she holds en autre droit, or which are settled on her as her separate property, without the license of her husband. He may covenant to that effect, before or after marriage, and the Court of Chancery will enforce the performance of that covenant. It is not strictly a will, but in the nature of an appointment, which the husband is bound by his covenant to allow. The wife may dispose by will, or by act in her lifetime, of her separate personal estate, settled upon her, or held in trust for her, or the savings of her real estate given to her separate use; and this she may do without the intervention of trustees, for the power is incident to such an ownership. It has been held, even at law, in this country, that the wife may, by the permission of her husband, make a disposition in the nature of a will, of personal property, placed in the hands of trustees, for her separate use, by her husband, or by a stranger, and either before or after marriage. If a feme sole makes a will, and afterwards marries, the subsequent marriage is a revocation in law of the will. The reason given is, that it is not in the nature of a will to be absolute, and the marriage is deemed equivalent to a countermand of the will, and especially as it is not in the power of the wife after marriage, either to revoke or continue the will, inasmuch as she is presumed to be under the restraint of her husband.d But it is equally clear, that where an estate is limited to uses, and a power is given to a feme covert, before marriage, to declare those uses, such limitations of uses may take effect; and though a married woman cannot be said strictly to make a will, yet she may devise, by way of execution of

a Pridgeon v. Pridgeon, 1 Ch. Cas. 117. Rex v. Bettesworth, Str.

891.

6 Peacock v. Monk, '2 Vesey, 190. Rich v. Cockel!, 9 Vesey, 369. c Emery v. Neighbour, 2 Hulsted, 112.

d Forse & Hambling's c:s3, 4 Co. 60. b. 2 P. Wms. 624. 2 Term Rep. 695. S. P.

a power, which is rather an appointment, than a will; and whoever takes under the will, takes by virtue of the execution of the power. Thus, in the case of Bradish v. Gibbs,a it was held, that a feme covert might execute by will, in favour of her husband, a power, given or reserved to her while sole, over her real estate. In that case, the wife,

before marriage, entered into an agreement with her intended husband, that she should have power during the coverture, to dispose of her real estate by will, and she afterwards during coverture devised the whole of her estate to her husband; and this was considered a valid disposition of her estate in equity, and binding on her heirs at law. The point in that case was, whether a mere agreement entered into before marriage, between the wife and her intended husband, that she should have power to dispose of her real estate during coverture, would enable her to do it, without previously to the marriage vesting the real estate in trustees, in trust for such persons as she should by deed or will appoint; and it was ruled not to be necessary; and the doctrine has received the approbation of the Supreme Court of Pennsylvania. Equity will carry into effect the will of a feme covert, disposing of her real estate in favour 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 ante-nuptial agreement with her husband.

With respect to ante-nuptial agreements, equity will grantats 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. Equity will execute the marriage articles at the instance of any person who is within the influence of the marriage consideration, as all such persons rest their claims on the ground of a valuable consideration. The husband and wife, and their issue, are all of them considered as within that influence, and at

a 3 Johns. Ch. Rep. 523.. b 10 Serg, & Rawl. 447.

at the instance of any of them, equity will enforce a spe cific performance of the articles."

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 agree ment, and sufficient to give validity to the settlement. This was so decided in the case of Reade v. Livingston ;b 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 settlement was made. But if the person be not indebted at the time, then it is settled that the post-nuptial voluntary settlement upon the wife or children, 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.c

settlement after marriage may be good, if made upon 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 es tate itself, in case the husband had sought the aid of the court, in order to get possession of it.d The settlement made after marriage, between the husband and wife, may

a Osgood v. Strode, 2 P. Wms. 255. Bradish v. Gibbs, 3 Johns. Ch Rep. 550.

b3 Johns. Ch. Rep. 481.

e 8 Wheaton, 229.

d Moor v. Rycault, Prec. in Ch. 22. Brown v. Jones, 1 Atk. 190. Middlecome v. Marlow, 2 Alk. 518.

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 agrees to part with a contingent interest. 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 postnuptial settlements will prevail against existing creditors, and subsequent puarchasers. 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 opinion, and the policy of the law, would rather seem to be against their validity in such a case.

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. If 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. 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 the settlement, whether it be upon herself, her children, or any other person. If the settlement be upon children by a former husband, and there be no imposition practised up

a Ward v. Shallet, 2 Vesey, 16.

Lady Arundel v. Phipps, 10 Vesey, 139.

c Slocombe v. Glubb, 2 Bro. 545.

d Buller, J. in Strathmore v. Bowes, Ibid. 346.

on the husband, the settlement would be valid, without notice; and it would seem, from the opinion of the Lord Chancellor, in King v. Colton, that such a settlement, even in favour 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, not only whether they are made before or after marriage; but if after marriage, whether upon a voluntary separation, by mutual agreement between the husband and wife. Lord Eldon, in St. John v. St. John,b fintimated, 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 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 separ. ate 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 the most momentous to the public interest, that could fall under discussion in a court of justice. Afterwards, in Worrall v. Jacob,c Sir William Grant said, he apprehended it to be settled, that Chancery would not carry into execution articles of agreement

a King v. Colton, 2 P. Wms. 674.

b 11 Vesey, 530.

€ 3 Merivale, 256. 268,