WIFE'S CHOSES IN ACTION. Effect upon her right to maintenance maintenance out of her fortune, as appears from this case before stated (a). And in Atherton v. Nowell (b), the husband had also begun his frauds upon the wife before the marriage, by inducing her to marry him upon the false representation of his being a person of fortune, with her hus- when in fact he was then greatly indebted, and was when she re fuses to live band shortly after the marriage sent to prison, where she resided with him, and endured severe hardships, which were the consequence of her marriage solemnized under the above false representation. It also appeared that the husband, after liberation from his first confinement, was again sent to prison for a considerable debt, and where he then remained; that there was only one child of the marriage living, and to support whom and herself she was put to great difficulties; that her husband had refused to contribute to their support, requiring her to live with him in prison, or to be at his mercy for such occasional support as he might think proper to bestow; and that from his behaviour to her, as well as on account of her own health, she was afraid again to live with him in prison. Under these special circumstances the Court ordered, upon cross petitions presented by the husband and wife, (the former praying that the interest of the wife's fortune might be paid to him, and the latter for an allowance for maintenance), that £50 cash in the Bank should be paid to the wife for her separate use, and directions were given to a Master to inquire into the circumstances and situations of the families of the husband and wife, with a view to a settlement of her for- WIFE'S tune, &c. CHOSES IN Effect of her equity for a a bar. 4. As to the effect of the wife's misconduct upon her equity for a maintenance ;—it is a trite observa- misconduct tion that persons appealing to a court of justice upon her ought to enter it with clean hands, i. e. they must be maintenance. objects worthy and proper to receive the redress Her adultery which they seek; hence it follows, that if the wife or elopement have been guilty of gross misconduct, a Court of Equity will not consider her to be a person intitled to its protection. If, therefore, she had committed adultery, or had eloped from her husband without a sufficient reason, and these facts were properly put in issue and proved, the Court would remain passive, and not interfere at her suit to allow her a maintenance out of her equitable property (a). (a) Vide supra, p. 272. CHAPTER VIII. In the fifth and sixth chapters it was shown that marriage was not an absolute gift to the husband of his wife's choses in action, but that the law gave him the power of making them his own, either by receipt or by assignment of them for value, or by a release of them. There yet remains to be considered, under the same title, another mode by which the husband may acquire the sole and absolute interest in his wife's equitable choses in action, whether immediately recoverable or in expectancy, although she survive him, viz. by making a valid settlement upon her; which subject it is proposed to consider in this chapter as follows: I. Settlements made before and in contemplation of marriage. 1. When they will intitle the husband to his wife's choses in action, although she be the survivor; and when he, or the persons claiming under him, will be obliged to perform his covenants or agreements, in order to intitle them to such property. 2. Of the validity of ante-nuptial settlements against purchasers and creditors as connected with the husband's title as a purchaser of his wife's equitable property. II. Settlements made after marriage. 1. Their effect in intitling the husband to his wife's choses in action in prejudice to her title by survivorship. 2. Of the validity of such settlements against HUSBAND'S TITLE TO ACTION BY are considered the settlements that are frau- CHOSES IN dulent, and also such of them as may be sup- SETTLE MENT BEFORE ported although made after the marriage, upon the principle of a valuable consideration. MARRIAGE. III. As to the husband's title upon surviving his wife to such personal estate as by settlement, &c. was limited to her "next of kin," &c. I. Settlements made before and in contemplation of marriage. title to his settlement 1. The husband may intitle himself to all his in- Husband's tended wife's personal estate, whether in possession wife's choses or in action, or which she may afterwards acquire, in action by by becoming a purchaser of it by a settlement made depends upon her previously to and in contemplation of the marriage (a). The principle is equality, viz. that as the wife has consented to accept a certain provision by settlement, so her husband, in consideration of his assent to it, shall be intitled to receive the whole of her fortune. upon his explied conchase them. tract to pur press or im But a mere settlement upon marriage will not intitle the husband to the whole of his wife's fortune. There must be an agreement for the purpose, either expressed or implied; for if the stipulation be for a part only of her property, that necessarily excludes the residue; or if the agreement extend to the whole of the fortune she was then intitled to, her husband will not be intitled to any personal estate which may Semble, that accrue to her during the marriage. And, it is pre- the adequacy (a) For a form of such a settlement, see Vol. ii. Append. No. 7. TITLE TO ACTION BY SETTLE MENT HUSBAND'S sumed, that adequacy or inadequacy of the provision is a consideration so indeterminate and capricious, that the Court will not take that circumstance into consideration when nothing appears from the settlement of any agreement or contract that the husband MARRIAGE. should, in consideration of it, be the purchaser of, or intitled to the whole of his wife's property, or what she may in future become intitled to during the marriage (a). BEFORE of the provision on wife will not be attended to upon this subject. The cases considered and commented on. It is conceived that the cases, or at least the modern ones, authorise the above conclusions. I am aware, however, that in Blois v. Hereford (b), a provision by settlement was made for the wife, and no notice was taken of her personal estate, and yet a decree was made in favour of her husband's representative, against her title by survivorship; the Lord Keeper observing, that in all cases where there was a settlement equivalent to the wife's portion, it was to be intended that the husband was to have the portion, although there were no agreement for the purpose. But this decision was shaken by Lords Commissioners Bathurst and Aston, in the case next stated, who observed that this was a strange report. And in Druce v. Denison (c), Lord Eldon said, that according to the modern cases, it is established that the settlement to be the purchase of the wife's fortune must either express it to be for that consideration, or the contents of the settlement altogether must import that, and plainly import it as much as if it were expressed. That such was the result of the cases upon the subject, and that it was not worth while to consider in (a) 2 Atk. 448. (b) 2 Vern. 501. (c) 6 Ves. 395. |