SECTION III.

Of Post Nuptial Agreements, and Settlements made after Marriage.

It is a general principle of the common law that a deed from the husband directly to the wife is void, though she might purchase of others without the consent of her husband. (Co. Lit, 3 a. Shepard v. Shepard, 7 John. Ch. 60. Strong v. Skinner, 4 Barb. 552.) Hence post nuptial marriage settlements can rarely be made without the aid of a court of equity. In Shepard v. Shepard, (supra,) Chancellor Kent held that a suitable provision by deed from a husband to his wife, will be supported in equity.

If a settlement be made after marriage in pursuance of a prior agreement entered into before marriage, it is valid not only between the parties, but as against creditors. It is merely doing by the act of the parties what the court would order to be done. (Reade v. Livingston, 3 John. 488.) Marriage itself is a sufficient consideration to uphold such a settlement.

Questions with respect to the validity of post nuptial settlements most frequently arise between the creditors of the husband and the wife, or her trustee in whom the title is vested. It is well settled that a voluntary settlement either of lands or chattels, by a person indebted at the time, for the benefit of his wife and children, is void as against his creditors. This rule applies as well to such property as the creditor could not reach, by execution at law, such as choses in action, &c., as to tangible chattels. Indeed, the process of the court can, according to present practice, be made available against choses in action and equitable interests, as well as against real property or chattels. (Bayard v. Hoffman, 4 John. Ch. 452. Reade v. Livingston, supra. Code, § 292, &c.)

But if the husband, though indebted at the time, settles upon the wife personal estate which came to her by descent from her relatives, to no greater extent than the court of chancery would have directed him to do upon a bill filed against him by the wife to protect her equitable claim to a support for herself and her children out of the same, such voluntary settlement will be sustained as against the creditors of the husband; although it may be void as to other property contained in the same conveyance to the trustee. (Wickes v.

Clarke, 8 Paige, 161.) Under the late acts relative to the property of married women, (the acts of 1849 and 1860,) the creditors of the husband could not reach such property at all; and they, therefore, would have no equity to disturb a settlement of it by the husband in favor of his wife.

As against creditors whose debts existed at the time, a post nuptial settlement will not be permitted to stand beyond the value of the consideration. (Garlick v. Strong, 3 Paige, 452.)

Although post nuptial contracts between husband and wife, by which property is set apart to her separate use, are void at law, yet if they arise out of considerations moving from her, they will be sustained in equity. Thus, where the husband, who was about to sell his estate, agreed with his wife, and with the knowledge of the purchaser, that if she would join in a deed of the premises so as to release her dower, she should receive a certain portion of the purchase money as her separate property, free from the control of her husband; and the purchaser gave a note to the wife for her share of the purchase money, and the agent for the wife, in whose hands the note had been placed for her use, loaned a part of the money received on the note, and took a bond and mortgage directly to the wife; and the husband afterwards assigned the mortgage to the original purchaser of the estate, without the assent of the wife, or her agent, it was held that in equity the bond and mortgage belonged to the wife, and that she was entitled to the money due thereon for her separate use. (Garlick v. Strong, sup. Searing v. Searing, 9 Paige, 289.)

With regard to what is a sufficient consideration for a post nuptial settlement as against creditors; not only her joining with her husband in a deed so as to discharge her claim to dower in the land conveyed, but her equity in a legacy, before the late statutes, have been held to be sufficient for this purpose. (Patridge v. Havens, 10 Paige, 618.)

Although upon a deed inter partes a stranger cannot, at law, recover on a covenant contained therein for his benefit, yet a court of equity will give effect to stipulations of this kind in marriage articles, and other conveyances in trust, upon the application of the party for whose benefit the provision was intended.

Thus, where the bill charged, that by a post nuptial agreement between the defendants, a husband and his wife, the property of the wife was conveyed to trustees, and it was agreed that a certain specified part of the property should be vested in stocks, or put out at

interest as a provision for the complainant for whom the wife considered herself under a moral obligation to provide, and that the interest or the dividends on the stock should be paid to the wife, free from the control of her husband, for the use and benefit of the complainant, according to the directions of the wife during her life, and that upon the death of the wife the principal should become the property of the complainant if she survived her; and the bill further charged that the husband refused to permit his wife to receive the dividends on the stock, and to pay them over, according to her direction, to the complainant; a general demurer to the bill for want of equity, put in by the husband for himself and wife jointly, was overruled. (Bleeker and wife v. Bingham, 3 Paige, 246. King v. Whitely, 10 id. 465.)

No technical form of words is necessary to create a trust for the separate use of a married woman. If the property be vested in a trustee, and the trust declared to be for her sole use and benefit, and the money to be paid to her individually, it is equivalent to providing for payment to the wife upon her separate receipt, and to exclude the husband. (Stuart v. Kissam, 2 Barb. 493.)

Before the late statutes relative to the estates of married women, the separate estate existing in the wife beyond the control of the husband, was subject to the incidents of ownership. In regard to such property she was treated in equity as a feme sole. She might dispose of it without the solemnity of a private examination. Such disposition was in the nature of an appointment. (Albany Fire

Ins. Co. v. Bay, 4 Barb. 407; S. C. on appeal, 4 Comst. 9.) She might mortgage it. Her receipt given to the executor, upon payment of a legacy absolutely belonging to her, as her separate property, was a good discharge. (Guild v. Peck, 11 Paige, 475.)

Having a separate estate subject to her own disposal, she might give it to her husband, as well as to any other person, if her disposition of it was free, and not the result of flattery or force, or improper treatment. (Cruger v. Cruger, 5 Barb. 226.)

Her separate estate was not liable, at common law, for her debts contracted before marriage; and the only ground upon which it could be reached in equity, was that of appointment; that is, some act of hers, after marriage, indicating an intention to charge the property. (Vanderheyden v. Mallory, 1 Comst. 452.)

The common law cast upon the husband a temporary liability for the debts of the wife contracted before marriage. This liability

INSURANCE OF HUSBAND'S LIFE, FOR WIFE.

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ceased with the coverture, unless judgment had been recovered against both. If the wife survived the husband, and judgment had not been recovered, her sole liability revived. Hence her private property could not be reached for such antecedent debts. But when a debt was contracted by a woman during coverture, either for herself or as surety for her husband, this was prima facie evidence of an appointment, or appropriation of her separate estate to the payment of the debt. (Id. S. C. 3 Barb. Ch. 9.) These principles were somewhat modified by the act of 1853, chapter 576. Now, an execution upon a judgment against husband and wife, for the debt of the wife contracted before marriage, binds only the separate estate and property of the wife; and the husband is no longer liable for the debts of the wife contracted before marriage, only to the extent of the property acquired by the marriage.

The tendency of the legislation in this state has been for many years in favor of increasing the provision which the common law made for married women and for widows. Our exemption laws, the acts of 1848, 1849 and 1860, and those concerning the administration of the estates of deceased persons, are examples of this tendency. These have already been sufficiently noticed.

In 1840, in furtherance of the same policy, it was made lawful for any married woman, by herself, and in her name, or in the name of any third person, with his assent, as her trustee, to cause to be insured, for her sole use, the life of her husband, for any definite period, or for the term of his natural life; and in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable, by the terms of the insurance, required to be made payable to her, to and for her own use, free from the claims of the representatives of the husband, or of any of his creditors; but such exemption was not to apply when the amount of the premium annually paid should exceed three hundred dollars. In case of the death of the wife, before the decease of her husband, the amount of the insurance, it was provided, might be made payable, after her death, to her children for their use, and to their guardian, if under age.

This modification of common law rules in favor of married women was equivalent to a marriage settlement, to the extent of the sum limited by the act. It was a beneficent provision which thus enabled her or her friends to place a certain sum beyond the reach of the husband's creditors, in case he should be insolvent when he died. But the act of 1840 was not based on the supposition that

the premium on the policy of insurance was to come in any case from the estate of the husband. If it was supplied from her separate property, or from any other source than from her husband's estate, his creditors had no equity to it. But it was obvious that in most cases the premium would be paid by the husband. If an insolvent should take the funds, which in justice belong to his creditors, and employ them in effecting an insurance upon his life for the benefit of his wife and children, the law would follow the fund on the death of the husband and make it available to the payment of his debts, upon the principle that every man should be honest before he is generous. As between his wife and children and other kindred of the deceased, the provision of the statute would be sustained in favor of the former, whatever might be the case between them and his creditors.

The act of 1858, ch. 187, p. 306, removed some of the difficulties which have been suggested, and extended this exemption of the insurance to all cases where the premium annually paid out of the funds or property of the husband shall not exceed three hundred dollars. This is, in effect, withdrawing so much more of the estate of a deceased person from the claims of creditors in favor of the widow and children. If the annual premium paid out of the estate of the husband exceeds three hundred dollars, it is not protected by the statute, from the claims of the representatives and creditors of the husband. But if the premium does not come from the estate of the husband, his representatives or creditors have no just title to it.

CHAPTER IV.

OF MERGER.

The subject of merger has been adverted to in several places in this treatise; but its importance and the intricacy of the doctrine seem to justify a more full discussion of it in a separate chapter.

It is not easy to give the definition of merger. Cases may easily be put in which it takes place; but that is rather a description of its effect than a definition of the term. The case put by Blackstone is an apt illustration of the rule. Whenever, he says, a greater estate and a less coincide and meet in one and the same person, without