But this rule must

§ 174. How far this Support Extends. be taken with some caution. The marriage consideration supports every provision with regard to the husband, the wife, and the issue. As for marriage itself, the marriage of persons formerly in loose cohabitation furnishes good consideration;1 and even perhaps a void or illegal marriage, provided that the marriage was contracted with honest conjugal intent, and particularly where the question affects only their respective interests.2 The consideration is held also to extend to stepchildren by a former marriage. It does not, however, always extend to collaterals,* though Sir Matthew Hale and others held formerly that it would, maintaining that the influence of the marriage consideration extended to purchasers generally.5 Nor are covenants in favor of strangers supported by the marriage consideration unless specially provided for.

The consideration of marriage will support a settlement against creditors, even prior ones; this, too, it would appear, though the parties both knew of the husband's indebtedness, so long as the provisions of the settlement are not grossly out of proportion to his station and circumstances; and so, too, where the party to be benefited thereby was implicated in no fraud upon the other's creditors, even though that provision be unreasonably large. But if it appear that the celebration of mar

son, 7 Pet. 348. And see Armfield v. Armfield, 1 Freem. Ch. 311.

628.

Beav. 505; Cotterell v. Homer, 13 Sim. 506; Wollaston v. Tribe, L. R. 9 Eq.

1 Herring v. Wickham, 29 Gratt. 44; Paul v. Paul, 20 Ch. D. 742.

2 Even in England, upon lapse of time, a settlement deed was allowed to stand where a widower had married his deceased wife's sister. Ayers v. Jenkins, L. R. 16 Eq. 275; § 16.

3 Michael v. Morey, 26 Md. 239; Gale v. Gale, 6 Ch. D. 144; Vason v. Bell, 53 Ga. 516. But see Price v. Jenkins, 4 Ch. D. 483. Cf. Ardis v. Printup, 39 Ga. 648, with Wollaston v. Tribe, L. R. 9 Eq. 44, as to children of a future marriage.

4 Peachey, Mar. Settl. 58, 60, and cases cited; Davenport v. Bishop, 1 Phil. 701; Barham v. Earl of Clarendon, 10 Hare, 133; Ford v. Stuart, 15

5 Jenkins v. Kemis, 1 Ch. Cas. 103; 1 Lev. 152.

6 Sutton v. Chetwynd, 3 Mer. 249; per Sir Wm. Grant Sugden, Law Prop. 153; Peachey, Marr. Settl. 61.

7 Campion v. Cotton, 17 Ves. 272; Ex parte McBurnie, 1 De G. M. & G. 446; Ramsay v. Richardson, Riley, Ch. 271; Armfield v. Armfield, 1 Freem. Ch. 311; Jones's Appeal, 62 Penn. St. 324; Brunnel v. Witherow, 29 Ind. 123; Barrow v. Barrow, 2 Dick. 504; Cochran v. McBeath, 1 Del. Ch. 187; Credle v. Carrawan, 44 N. C. 422.

8 Collaterals are favorably regarded in Neves v. Scott, 9 How. (U. S.) 196; Ib. 13 How. 268; Schouler, Hus. &

riage is part of a scheme between the marrying parties to defraud and delay creditors, such settlement will not be allowed to protect the property against just claims of the latter.1 At all events both parties to the settlement must have known of the intended fraud in such cases. Where fraud has been committed by husband and wife in reference to property em- . braced in the terms of a settlement, the rights of a creditor with insufficient notice are sometimes upheld as against themselves; and a wife's settlement of her own property has been so far set aside as to secure payment of her antenuptial debt to the creditor.2

§ 175. Settlement Good in Pursuance of Written Agreement. -If an agreement be made in writing before marriage, for the settlement of an estate, the settlement, although made after marriage, will be deemed valuable. This is a well-settled rule, and should be constantly borne in mind.

There are dicta to the effect that a settlement after marriage, reciting a parol agreement before marriage, is not fraudulent against creditors, provided the agreement had actual existence; but this point has never been distinctly decided in England;

Wife, 349, and cases cited. Where no fraud upon the husband's creditors can be charged on the woman, she may hold as a purchaser for value against the husband's prior creditors, even though the settlement upon her embraced the husband's whole estate, and the marrying parties had been cohabiting while single, and had illegitimate children. Herring v. Wickham, 29 Gratt. 628. This is an extreme case, and perhaps some other States would not extend the rule so far. But it finds strong support from the Supreme Court of the United States in a case decided in 1881, which upheld the settlement of a large amount of real estate, in consideration of marriage, by an insolvent debtor upon the woman who accepted him, notwithstanding the latter knew he was financially embarrassed. Prewit v. Wilson, 103 U. S. 22. See comments, Schouler, Hus. & Wife, § 349. And

see Kevan v. Crawford, 6 Ch. D. 29; Exchange Bank v. Watson, 13 R. I. 91; Sanders v. Miller, 79 Ky. 517.

1 Columbine v. Penhall, 1 Sm. & Gif. 228; Goldsmith v. Russell, 5 De G. M. & G. 555; Peachey, Mar. Settl. 63; Simpson v. Graves, Riley, Ch. 232.

2 Sharpe v. Foy, L. R. 4 Ch. 35; Smith v. Chirrell, L. R. 4 Eq. 390; Chubb v. Stretch, L. R. 9 Eq. 555; Obermayer v. Greenleaf, 42 Mo. 304; Brame v. McGee, 46 Ala. 170. As to the good faith of a grantee in such fraudulent settlements, see 79 Va. 92.

& Reade v. Livingston, 3 Johns. Ch. 481; Finch v. Finch, 10 Ohio St. 501; Izard v. Izard, 1 Bailey Ch. 228; Davidson v. Graves, Riley, Ch. 219; Satterthwaite v. Emley, 3 Green, Ch. 489; Rogers v. Brightman, 10 Wis. 55; Peachey, Mar. Settl. 63; Sugd. Vend. & Purch., 13th ed. 590; Macq. Hus. & Wife, 257.

and some late authorities appear to doubt its correctness.1 The
payment of money would, however, make a good consideration
for such a settlement as against subsequent creditors.2 Very
informal agreements are often sustained, rather on liberal than
technical construction, the court taking into consideration the
fact that marriage had taken place, or other acts been per-
formed, on the strength of the promise. The disposition of
equity courts in the United States is favorable to settlements
after marriage in pursuance of some informal prior agreement,
particularly as relates to personal property and as between the
spouses themselves. Other considerations, such as forbearance
to sue, or the fulfilment, in return, of terms prejudicial, might
intervene. A mere oral agreement between the intended hus-
band and wife, followed by marriage and a continued recognition
by acts, especially in connection with such other consideration,
is held sufficient for the wife's favor in some late American
cases, as between the parties and those claiming under them.5
§ 176. Form of Antenuptial Settlements. With respect to
the form of marriage settlements it may be generally observed
that equity pays no regard to the externals, but considers only
the substantial intention of the parties; and hence articles or
an agreement will be binding between husband and wife with-
out the intervention of trustees; for here the husband himself
may be bound to act as trustee.

1 See Peachey, Mar. Settl. 63; Lassence v. Tierney, 1 Mac. & Gor. 571; Warden v. Jones, 5 W. R. 447. And see Babcock v. Smith, 22 Pick. 61; Simpson v. Graves, Riley Ch. 232.

2 Stillman v. Ashdown, 2 Atk. 478; Brown v. Jones, 1 Atk. 189. And see Butterfield v. Heath, 15 Beav. 414.

3 See Livingston v. Livingston, 2 Johns. Ch. 481; Resor v. Resor, Ind. 347; Brooks v. Dent, 1 Md. Ch. 523; West v. Howard, 20 Conn. 581.

Riley v. Riley, 25 Conn. 154; Brad ley v. Saddler, 54 Ga. 681. See, as to the like English practice, Peachey, Mar. Settl. 74, 87; Macq. Hus. & Wife, 234; Hammersley v. De Biel, 12 Cl. & Fin. 45; Lassence v. Tierney, 1

And hence the signature of

Mac. & Gor. 571. The numerous dicta
in all such cases serve rather to ob-
scure than illustrate the principle.

6 See Schouler, Hus. & Wife, § 350;
and cases cited; post, §§ 176, 179.

6 Peachey, Mar. Settl. 65; Macq. Hus. & Wife, 242; Logan v. Goodall, 42 Ga. 95. But see Dillayev. Greenough, 45 N. Y. 438.

A strong instance of the liberality of the equity courts in this respect was afforded in an early decision by Lord Keeper Wright. The intended husband gave the intended wife a bond conditioned to leave her £1,000 if she should survive him. They married, and of course the bond became void at law. But it was held that in equity

H

the wife to an instrument or an indenture deed is by no means indispensable in order that her rights upon marriage consideration be sustained. But it is held that an antenuptial instrument, executed by the husband only, binds himself alone by its purport, though in form an indenture.2 Oral settlements should only be sustained on clear and convincing proof; for such arrangements ought properly to be in writing.3

-

§ 177. Marriage Articles. In this connection the use of the term "marriage articles" is properly to be noticed. "When promises and agreements in consideration of marriage," says Mr. Macqueen, "are meant to become the ground-work of settlements, they are called marriage articles. They are often drawn up hastily, and signed on the eve of the nuptial ceremony from want of time to prepare a final deed; which, however, when ultimately executed, if it be in strict conformity with the articles, will supersede them." The American rule

is favorable to marriage articles, although unskilfully drawn, so long as they are bona fide articles, and the party marrying upon their faith had good reason to rely upon them as such.5 Any settlement made after marriage, in pursuance of marriage articles, or what may be construed as such, receives the full support of the marriage consideration, and must prevail accord

this should subsist as an antenuptial agreement. Acton v. Pierce, 2 Vern. 480. Even in law a bond, with conditions properly expressed, may be enforced against the husband to the extent of the penalty therein named; yet equity, regarding the contract as one for specific performance, will not confine the remedy of the injured party to the penal sum named in the bond; but, enforcing the real obligations of the bond, will give, if need be, thirty times that sum to her who married on the strength of it. Such is the advantage of equity over the law. See Prebble v. Boghurst, 1 Swan, 309, before Lord Eldon, cited in Macq. Hus. & Wife, 243 et seq.; Cannel v. Buckle, 2 P. Wms. 242; Rippon v. Dawding, Ambl. 565; Peachey, Mar. Settl. 65. Bonds have been frequently enforced

ingly against creditors, purchasers, and each of the married parties.

Letters or a correspondence before marriage may establish an antenuptial settlement where they sufficiently furnish the terms. of the agreement. And so, too, may they constitute marriage articles and support a settlement made in pursuance of their terms.1 But the authenticity of such correspondence should be well established, so easy is such proof manufactured to suit emergencies; and certainly where the contest is between the married pair and a husband's creditors, the true date of the letters should be proved, or else that they were duly received before the marriage. Nor will performance be decreed, unless it can be gathered, from a fair interpretation of the letters, that they imported a concluded agreement, and induced the marriage; nor if it be doubtful whether what passed was not mere. negotiation, or a gratuitous offer by the one, which the other never accepted nor meant to rely upon.3

$178. Marriage Settlements by Third Persons. Promises made in consideration of the marriage by a third party, such as the wife's father, may afterwards be enforced against him as (in such an instance) by the husband. But it must appear that the latter knew of the promise, and that it entered as an ingredient into the marriage; and the husband cannot, upon finding, after marriage, that his wife, while single, had received a letter from her father, promising a certain allowance, hold the latter to specific performance. The promise of a third party may be for the wife's benefit; or it may be for the mutual benefit of the married parties, and enforceable accordingly.

1 Logan v. Wienholt, 1 Cl. & Fin. 611; Hammersley v. De Biel, 12 Cl. & Fin. 45; Moorhouse v. Colvin, 15 Beav. 349; Kinnard v. Daniel, 13 B. Monr. 496; 17 Ch. D. 361, 365.

2 Kinnard v. Daniel, 13 B. Monr. 496; Montgomery v. Henderson, 3 Jones Eq. 113.

8 Fowle v. Freeman, 9 Ves. 315; Card v. Jaffray, Sch. & Lef. 384; Chambers v. Sallie, 29 Ark. 407; White v. Bigelow, 154 Mass. 593.

Ayliffe v. Tracy, 2 P. Wms. 66;
Madox v. Nowlan, Beatty, 632.

5 Thus, in a recent English case the
estate of a father was held bound by
his written statements of intention to
settle the whole of his property upon
his daughter, on the strength of which
she married; and this, notwithstanding
the father, being at the time a widower,
remarried afterwards and left a widow.
Coverdale v. Eastwood, L. R. 15 Eq.
121; a harsh case, truly.

1