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SETTLE

it out of the statute of Elizabeth, in respect of MENTS AFTER creditors, and that as to the statutes of bankruptcy,

MARRIAGE,

THEIR VALI- they did not extend to cases where there was a consideration. If therefore the father or collateral re

DITY

AGAINST

&c.

CREDITORS, lation advanced a sum of money by way of new portion, in consideration of which the husband made a new settlement, it would be good against the cre ditors under the commission, unless proved that the settlement vastly exceeded the consideration, so that from the inadequacy a collusion or fraud was intended on the creditors.

The consideration may be the relínquishment of any

terest by the

wife,

ture,

As the advancement of money on behalf of the wife for a settlement, will make it good against cre ditors, so the giving up of any valuable interest by her in consideration of the settlement after marriage will support it against creditors and subsequent purchasers, because such a settlement does not class among those that are voluntary, but amongst such as are made for a valuable consideration; in fact the wife herself becomes a purchaser for herself and family.

In the last case the wife gave up a contingent interest under a bond, and in Cottle v. Fripp (a), the wife as her join- being intitled to a jointure of £40 a year, relinquished it by fine after the marriage in consideration of a bond, and a judgment confessed by the husband to her trustee to settle lands upon her of that yearly amount; the Court decreed that the bond and judgment were intitled to precedency of the husband's other creditors.

or dower.

So also in Lavender v. Blackstone (b), the Court said, that if the wife had joined with her husband in the fine,

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MENTS AFTER

(by which she would have been barred of dower) it SETTLEmight have made the settlement after marriage to MARRIAGE, be of good consideration, which otherwise was merely THEIR VALIvoluntary.

DITY

AGAINST

&c.

It seems that the provision made by the husband CREDITORS, for his wife may in its creation be voluntary and void as against creditors, and yet become afterwards binding upon them.

substitution

rendered va

Suppose him, then, to give a bond to a trustee to Instance of pay a sum of money within six months to be settled a voluntary post-nuptial upon his, the obligor's, wife and family. This is a security begood bond against himself, but it may be defeated ing, by the by his creditors: also suppose the six months to of another, elapse, and that the husband, instead of paying the lid against money, gives another bond to the trustee in consi- creditors. deration of being allowed a further period for pay. ment of the money, and of the surrender.of the first obligation; it is presumed that, in analogy to the case ex parte Berry (a), the second bond will not only be binding upon the husband, but also upon his creditors; and upon this principle, that the first bond, although voluntary, (it being good between the parties, and upon which the obligor might have been compelled by legal process to have paid the money), having been surrendered for another security, the forbearance and surrender constitute such a valuable consideration, as to make the transaction binding upon the husband's creditors. The transaction, however, must not be fraudulent, for if the original design of the parties in thus giving, accepting, and surrendering the securities, was an attempt to create

(a) 19 Ves. 218.

SETTLE

a valuable consideration by trick and contrivance, it would taint the whole transaction and prove inTHEIR VALI- effectual.

MENTS AFTER
MARRIAGE,

DITY

AGAINST

&c.

If the wife enjoy property to her own separate CREDITORS, use, and subject to her own separate and absolute disposition, and she give any part of it to her husband, or charge it for his use in consideration of a settlement after marriage, she will be a purchaser of the provision, and the settlement will be binding upon his creditors and subsequent purchasers.

Relinquish ment of pro

perty of

which wife

has the ab

solute dispo

sition, is a valuable

considera

tion.

Thus, in Lady Arundel v. Phipps (a), the wife had a general power of appointment under her marriage settlement in default of issue male (of which there were none), of certain estates belonging to her own family, and comprised in the settlement, with the ultimate limitation to her own heirs. She, dealing with such her separate estate, contracted with her husband for the purchase from him of several paintings, drawings, engravings, plate, jewels, &c. by providing out of her estates, after the survivor's death, for payment of several of his debts, amounting to £12,000, and releasing him from a considerable debt affecting such estates, and which had been borrowed for him, and by resettling the estates as therein mentioned, and which matters were effected by her exercising the above power of appointment. The husband, on his part, assigned to trustees for his wife the paintings, drawings, &c. The question was, whether this post-nuptial settlement was valid against the husband's creditors. The husband it seems continued in possession, but which appeared to be

(a) 10 Ves. 140.

MARRIAGE,

DITY

&c.

unavoidable, and was not inconsistent with the deed, SETTLEsince his possession must be considered as that of MENTS AFTER the wife, the trust being to permit her to use and THEIR VALIenjoy, &c. And Lord Eldon expressed his opinion AGAINST that, if the wife's purchase were bona fide, it was of no CREDITORS, consequence whether it was before or after marriage; that the mere circumstance of the possession of chattels, however familiar it might be to say that it proved fraud, amounted to no more than that it was prima facie evidence of property in the man possessing them, until a title not fraudulent were shown under which that possession had followed.

The case was never decided in equity, though much discussed both there and at law (a). the settlement, under all the circumstances, was

At law

But the

price paid

must be in

able,

found by a jury to be fraudulent, but not to the proportion satisfaction of Lord Eldon, who intimated, that if and reasonthe property sold to the wife bore any reasonable proportion to the value of the £12,000, the settlement would be good if devested of circumstances of fraud. He therefore directed an issue to the Court of Common Pleas, the trial of which, I believe, was prevented by the compromise of the suit.

Court cannot deter

mine, must

be left to a jury.

What is a reasonable proportion or value between which if the the thing given or paid, and that settled in consideration of it by the husband, is a calculation and result dependant upon each case in connexion with collateral circumstances. The question is incapable of a general definite answer, and when the Court is unable to draw the conclusion after weighing all the circumstances, the fact must be ascertained by a

(a) 6 East, 257.

TITLE AS
WIFE'S
"NEXT OF
KIN," &c.

HUSBAND'S jury. This alone can be affirmed, that if the settlement be just in general, the Court does not weigh with exactness the particular advantage gained on the one side or the other; but that if the disproportion be so great as would strike any man of common sense with the inadequacy between the settlement and the price given for it, then such circumstance will raise so violent a presumption of fraud as to vitiate the transaction, and let in the husband's creditors.

Husband's title under

description of his wife's

"next of kin," &c.

III. The husband has sometimes claimed his wife's personal estate after her death, when by settlement, &c. it was ultimately limited to "her next of kin," or "to her next of kin or personal representatives," or "to her relations." But it has been determined against his claim, upon the principle that such expressions are to be regulated by the statute of distribution (a), which, by the word "kindred," mentioned in it, means only persons related to the intestate by blood, one of which the husband is not; so that whether the limitation in a settlement be as above; or the wife, under a power contained in it, appoint to her next of kin, &c. (b), without further addition or explanation, her husband surviving her will be unable to make a title to the property under such a description.

This subject was so settled by Lord Rosslyn, in Watt v. Watt (c); whose decree in that cause was adopted and followed by Sir William Grant, the late Master of the Rolls, in the modern case of Bailey v. Wright (d).

(a) 22 and 23 Car. 2, c. 10. (b) 14 Ves. 382.

(c) 3 Ves.

244.

(d) 18 Ves. 49.

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