sion, stands upon the peculiar doctrine of such Courts. The habit of the Court has always been of itself, and without any application previously made by the married Woman, to direct an inquiry, where Money has been carried over to her account, whether any Settlement has been made adequate to the Fortune she then possessed (b); for the Money is carried over subject to that inquiry; and the constant course has been to direct a Settlement, not upon the Wife only, but upon the Children also. She is not permitted to say she claims a Settlement for herself and not for her Children (c). She has the option not to have any Settlement made; but if a Settlement is to be made, it is always directed for the benefit of the Wife and Children (d). She may, upon examination apart from her Husband, and with full knowledge of her right, the same being ascertained (e), wave a Settlement (ƒ), even in favour of a Husband who is insolvent (g), and she can do it in that way only (h): an Agreement out of Court, even where the Wife lives apart from her Husband, is insufficient (¿).

From several Cases, as reported, it might appear doubtful whether Children have any substantive and independent right to claim a Settlement out of the property of their Mother, if a Settlement was not directed during

(b) Lady Elibank v. Montolieu, 5 Ves. 743, 4. March v. Head, 3 Atk. 721.

(c) Murray v. Lord Elibank, 13 Ves. 6.

(d) Ibid. 6, 7.

(e) Sterling v. Rochfort, 8 Ves. 164. Woollands v. Crowcher, 12 Ves. 178. Edmonds v. Townshend, 1 Anstr. 98. Anon. MS.

(f) See Wright v. Rutter,

2 Ves. 677. Dimmoch against Atkinson, 3 Bro. C. C. 195.

(g) Willats v. Cay, 2 Atk. 67; but see Ex parte Higham, 2 Ves. 579.

(h) Macaulay v. Philips, 4 Ves. 18.

(i) Ibid. 15.

her Life (k). Lord Hardwicke seems, in one Case, to have thought they had such a right (7); but in a subsequent Case he held differently (m). Sir Thomas Clarke considered the Children as having a right; but his Decree was afterwards reversed by Lord Northington (n). The point, however, seems settled by a recent Case, in which all the Authorities were fully considered (0), and where it was holden, that the Children of a Feme Covert, a Legatee, have no Equity to insist on a Settlement after the death of the Mother, unless there is a Contract, or a Decree for a Settlement in the Life-time of the Mother (p). If there has been a Decree directing a Settlement on the Wife and Children, and she does nothing to wave the Equity, (for in this stage she may wave it as to herself, but not, perhaps, as to her Children) (q), and she dies before the Report, the Children are entitled (r). So if after a Proposal of a Settlement by the Husband, he dies, the Children would have a right to have it carried into execution (s).

If a Husband who has received the greatest part of his Wife's Portion, (it would be otherwise, it seems, if he had received no part of her Portion) (t) refuses

(k) Murray against Lord Elibank, 13 Ves. 7.

(1) Grosvenor v. Lane, 2 Atk. 180, and see 2 Ves. 672.

(m) Hearle v. Greenbank, 3 Atk. 717.

(n) Scriven against Tapley, Ambl. 509. S. C. 2 Eden; see also Cockel v. Phips, 1 Dick. 391. These cases are noticed by Sir William Grant, in Murray and Lord Elibank, 13 Ves.

7.

(0) Lloyd v. Williams, 1 Madd. Rep. 450. (p) Ibid.

(q) See 2 Ves. 672.

(r) Murray v. Lord Elibank, 13 Ves. 1. S. C. 10 Ves. 84, on demurrer; and see Macaulay v. Philips, 4 Ves. 19, 20; and also Becket and Becket, 1 Dick. 343. Rowe v. Jackson, 2 Dick. 604.

(s) Anon. 2 Ves. 672.
(t) See 2 Ves. 562.

to make a Settlement out of the small remainder of her Portion, the fund will be ordered to be paid into Court, and he will be prevented from receiving the interest of such residue, unless he is starving (u).

In all those Cases where a Settlement is made, the Husband is considered as entitled to the Income of his Wife's equitable interest during his life, unless he has received some fortune with her, or has misbehaved (x), as by running away with a Ward of the Court (y), or is separated from his Wife (≈), or leaves her unprovided for (a), or has become a Bankrupt (b), or makes a general Assignment for the benefit of his Creditors (c).

And the Court will prevent a Husband taking the interest of Money in Court, the property of the Wife, upon the Wife's Affidavit of ill treatment; and will direct it to be paid into Court (d); and in case of desertion (e), or other ill conduct (ƒ), will order her a Provision and where the Husband goes abroad, and has assigned part of the Dividends of Stock belonging to his Wife, without making any Provision for her, the remaining Dividends will be ordered to be paid to her (g), or till he thinks proper to return and maintain her (h).

21.

:

(u) Bond v. Simmons, 3 Atk.

(x) Macaulay v. Philips, 4 Ves. 15. See Bond v. Simmons, 3 Atk. 20.

(y) See Like v. Beresford, 3 Ves. 506.

(z) Ball and Montgomery, 4 Bro. C. C. 339. S. C. 2 Ves. jun. 191.

(a) Sleech v. Thorington, 2 Ves. 562. Wright v. Morley,

11 Ves. 12.

(b) Wenman v. Mason, 1 P. Wms. 459, in note.

(c) Pryor v. Hill, 4 Ves. 138.

In one Case, where advances had been made for her Maintenance, to a married Woman deserted by her Husband, on the credit of a Fund in Court her Property, and exceeding the income of such fund, he was ordered to be reimbursed out of the Capital (h).

But the Court will not interfere if the Wife refuses to live with her Husband (i); and where there had been a Divorce for adultery by the Wife, the Chancellor refused to order Money, settled to her separate use, to be paid either to the Wife or the Husband (k); and in such case, Trustees will, if necessary, be restrained from proceeding at Law to recover her separate Maintenance (1). So, if the Wife refuses to live with her Husband (m), or elopes, the Court will not assist her in recovering Property settled to her separate Use (n).

If a Feme Covert has Pin Money (0) secured by a Term, and runs away and lives in Adultery, and the Trustees proceed at Law to recover the Term, it seems they may be restrained; but if she left her Husband on account of ill usage, or other reasonable grounds, or the Husband acquiesced in her departure, Courts of Equity will not interpose (p).

If an annual Sum be secured for the Wife's Pin Money for her Apparel and Expenses, and the Husband and Wife cohabit together, and the Husband

(h) Grey v. Pearkes, 18 Ves. 196.

(i) Bullock v. Menzies, 4 Ves. 798.

(k) Carr v. Eastabrooke, 4 Ves. 146.

and 2 Dick. 806. Mildmay v. Mildmay, 1 Vern. 53.

(0) What Addison thought of Pin Money, may be seen in No. 295 of the Spectator. Lord Eldon has said, "I detest Pin Money, and have a strong (1) Moore v. Moore, 1 Atk. prejudice against it." Wheatley's Case, 1804, MS.

276.

(m) Barn. 136.

(n) Lee v. Lee, 1 Dick. 321.

(p) Sir R. More and Earl of Scarborough, 2 Eq. Abr. 156.

maintains her, the Arrears of Pin Money are not recoverable (9) beyond the Year (r), for in such case she is supposed to have been satisfied; but if the Wife lives separate, and has no Allowance, an account of the Arrears of Pin Money will be decreed (s).

To resume the consideration of Trusts raised by Settlements, we may next consider the creation of Trustees to support contingent Remainders.

These Trusts arose out of the doctrine in Chudleigh's Case (t), and in Archer's Case (u), but they were not put in practice till the time of the Usurpation (x), when Sir Francis Moore first made use of them. Duncombe and Duncombe (y), appears to have been the first Case in which such a Limitation to Trustees came in question (≈).

Where an Estate (a) is limited to A. for life, remainder to his first, &c. Sons in Tail, though it be a plain wrong and tort in him to do any act which will destroy those contingent Remainders, (“a most barbarous thing," Lord Talbot calls it) (b), before the birth of a Son, notwithstanding his legal power of doing so, yet, as in such case there is no Trustee, there can be no Trust, nor consequently any breach of trust, and therefore a Court of Equity has no cognizance of such a case, the matter being left purely to the Com

(g) Thomas v. Bennet, 2 P. Wms. 341; and see Fowler v. Fowler, 3 P. Wms. 353;

(r) See 2 Ves. 190.

(s) Aston v. Aston, 1 Ves.

267.

(t) 1 Co. 120.

(u) Ibid. 66.

(y) 3 Lev. 437.

(x) Garth v. Cotton, 1 Ves.

555.

(a) Mansell and Mansell, 2 P. Wms. 681. S. C. MS. Pye v. George, Salk. 680. Garth and Cotton, 3 Atk. 754. These cases overrule what is said in Duke

(x) Garth v. Colton, 1 Ves. of Norfolk's case, Pollexf. 250.

555.

(b) For. 239.