and the husband had been dead about five years. Dower. Lord Henley decreed that the value of the jointure Jointures should be estimated as it was at A's death, and not under at the time of the execution of the settlement, as in powers. the prior cases. The observations which occur upon the perusal of the last case are these: that it differs from the preceding cases in the form of the covenant entered into by the settlor, the intention from which appears to have been, that the value of the jointure at the time of the execution of the power, was not to be conclusive upon the wife, but should be subject to investigation at the settlor's death, when his widow's title to the possession of the lands commenced, and at which period it was meant and covenanted, that her jointure should be £400 a year. That the covenant was prospective, viz. if the premises that had been settled should fall short, &c.: which showed the settlor's meaning, that the value was not to be irrevocably fixed by the settlement containing such a covenant. That the covenant seems to have been intended to counteract the rule established by the preceding cases, and to be a security for the value of the jointure being £400 a year at the period of the husband's death. This distinction appears to reconcile the present case with the preceding decisions. If, however, it should be determined that, notwithstanding the above criticism, this and the preceding cases are contradictory, then the number and weight of the authorities against Lord Henley's opinion in the above case, united with the circumstance of it not appearing that any of the preceding authorities were mentioned in the argument of that case, or alluded to by his Lordship, would, as it is presumed, over VOL. I. K K DOWER. Jointures under powers. Powers to jointure in proportion wife's for tune. The execution will be good only to the extent of the actual balance that single decision, and leave the rule settled by Sir Francis North and Lord Hardwicke, as before stated. When the power limits the amount of the jointure to be made with reference to the amount of the wife's fortune, in that case no larger sum can be to amount of appointed under the power than is in proportion to the value of the fortune actually and bonâ fide brought by her. There must be no contrivance, no fraud to augment such portion; for if, in order to make a large jointure under the power, a greater sum is paid to the husband than his wife's real forand bona fide tune, which excess he repays; or if he endeavour by prior agreement to benefit himself by the appointment, as in Lane v. Page (a); in such and the like instances the execution of the power will be good pro tanto, and void as to the excess; for the fraud only affects a part of the transaction: such part, therefore, to which it does not extend, remains a valid execution of the power. amount of the wife's portion. An instance of this species of limited power occurred in the case of the Earl of Tyrconnel v. the Duke of Ancaster, and the Duke of Ancaster v. Lady Sherrard (b). There the power was to enable the tenant for life to settle a jointure (which was of lands) not exceeding the clear yearly value of £100 for every £1000 that he should receive as and for his wife's portion. The fortune of his wife was £10,000; £8000 of which he received, and the remaining £2000 were settled to increase the portions of the younger children of the marriage, of which there were none. The husband, in consideration of the £10,000, settled a jointure of £1000 a year upon DOWER. his wife, under the power. A question arose upon Jointures this execution, whether, since he in fact only re- under ceived £8000 of the portion, the power was well powers. executed to the extent of £1000 a year? And as the principles of the whole of the subject now under consideration are fully and clearly stated by Lord Hardwicke in his judgment upon this part of the case, it will be proper minutely to detail it in this place. "The first question," said his Lordship, "is upon the fact, whether Sir B. Sherrard (the tenant for life) is to be considered as having received £8000 or £10,000? I am of opinion that he must, according to the nature of the thing, be considered as having received a portion of £10,000 with his wife. On the marriage it was to be considered as that sum. But it is objected, that £2000, part of the portion, was not received by the husband; so that, in consequence of the settlement, by his not surviving, it came back to his widow, there being no younger children, and is therefore to be considered as no part of the portion upon which the jointure was made, and for that reason no jointure is to be made for it. But I am of opinion that objection does not hold. I agree, that where a jointure is to be made under such limited powers, of a portion to be received, the transaction must be fair, bona fide, without fraud and collusion; and therefore, if it be a nominal, not a real portion, that will not do. It often happens that a man marries a lady with a small portion, and he or his friends advance money to make that a nominal portion, and A nominal up The transaction must be bona fide. take it back; that will not do. But that is not the portion will not do. present case. Parents create these powers with this Dower. Jointures under powers. But the wife's fortune need not to be paid to the view, viz. to compel their children to marry prudently with a wife of an adequate quality, certainly of an adequate fortune, and not to burthen the estate with a great jointure for a wife who brings nothing into the family, and who probably will not deserve it. Wherever, therefore, the portion of the wife is sti pulated to be applied in a proper and reasonable manner, in the usual way of settling, for the benefit husband; if it of the family, that is to be considered as a portion be settled on received. Not that the father meant that every part the marriage, that is suf- of this portion should be actually received by his ficien. son to spend or waste; that could not be the meaning. If, therefore, it be settled so as to come for the benefit of the family in the fair way of contracting and making settlements, that comes for the benefit of the husband and his family; and that is the present case. I consider what is fairly settled for the family, comes to the benefit of the husband." No relief in equity against jointures for inequality. It is customary, in a Court of Equity, to relieve parties against unconscionable transactions, when they can be restored to the same situation as they were at the period when such transactions took place. In instances where this cannot be done, the Court does not interfere; so that it will not give relief against marriage contracts for settlements, jointures, or other provisions, although they be very unequal, and in favour of the wife; for, as the Court cannot place the parties in the same situation in which they were prior to the marriage, it entertains no jurisdiction in the above cases. Thus, in Wicherley v. Wicherley (a), where the person in remainder sought relief against a jointure (a) Cited, 2 P. Will, 619. made by the tenant for life upon his death-bed, in consideration and prior to his marriage by virtue of DOWER. Jointure, a power, it was refused by Pratt, C. J., Lord Parker, covenant, and C., and the Master of the Rolls. performance. So, also, in North v. Ansell (a), the wife's portion was £500, in consideration of which and of the marriage, the husband empowered his wife to dispose by will of £200. She appointed that sum and died before him; and although the husband stated that he had only received £300 of the portion, yet, Allegation of as the consideration for the power was the marriage, he had only and he had acquiesced in the transaction for fifteen received part years, during which he lived with his wife, the Court ordered the money to be paid to the appointee, regardless of the consideration of the adequacy or in- acquiesadequacy between the power and the portion. IV. I shall now proceed to the performance and satisfaction of covenants to make jointures. may husband that of wife's for tended to, on the ground of cence. satisfaction of covenants, and the distinction be This be when the husband is under a cove- Of performnant to settle a jointure of lands upon his wife, and ance and he afterwards either does something in his lifetime, or permits something to happen after his death, from which the law presumes an intention that the act was tween them. done or the thing permitted to happen in performance of his obligation: or when the husband makes a disposition by his will in favour of his wife, without declaring it to be in satisfaction of his covenant or the jointure; but in that case, whether the devise be intended in discharge of his covenant depends upon an inference to be drawn from his own testamentary act by the judge, and is not created by the law as in the former case; the whole will is to be (a) 2 P. Will. 618. |