MALE INFANT AND FEMALE ADULT. interest in his wife's estate subject to all pre-existing substantive incumbrances. But I apprehend Slocombe v. Glubb was not of this complexion. For there by indentures of settlement made in contemplation of the marriage, the intended wife, an adult, conveyed certain real estates to trustees in trust for herself for life, to her separate use; remainder to the intended husband, an infant, for life; remainder to trustees to preserve; remainder to children, &c. ; and the intended husband and intended wife also covenanted with the trustees to convey any other property to which she might become entitled during the coverture to the uses of the settlement; and also that she should suffer a common recovery of a moiety of the manor of V. whereof she was tenant in tail, within one month after her intended husband should attain the age of twenty-one, to the uses of the settlement. The marriage was solemnised; the husband attained majority; and thereupon a bill was filed by the trustees against the husband and wife to compel them to suffer a common recovery of the manor, and to settle certain estates (to which the wife had become entitled since the marriage) to the uses of the settlement. The husband, by his answer, insisted that, being a minor at the time of executing the settlement, he was not bound thereby; but Lord Thurlow decreed the contrary on the grounds stated in the text. Now in Durnford v. Lane, 1 Bro. C. C. 106, his Lordship, speaking of the case of a female infant, said, "I think she is not bound unless she has availed herself of the settlement of her husband." The rules are the same in the case of male and female infants. Why then, it may be asked, did not Lord Thurlow say, in Slocombe v. Glubb, “I think he is not bound unless he has availed himself of the settlement of his wife?" Suppose an adult wife to stipulate by articles with her intended husband, an infant, and suppose him to agree that her estate shall be settled to her separate use; will a Court of Equity, after the marriage, and after the husband comes of age, compel a specific performance against him? I apprehend it will not; for where the husband is a minor no contract between him and his wife can have the effect of abridging or controlling the dominion which the law gives him over her estate. As to what that dominion is, see supra, p. 27. settlement to articles. WHERE the marriage has taken place on the faith of Conformity of ante-nuptial articles, the parties have a right to insist on the execution of such articles by a proper deed of settlement; and for this purpose a Court of Equity will, if necessary, lend its assistance to compel a specific performance. The deed ought, of course, to conform with the articles; but, in saying this, we must observe that a literal or verbal conformity is not always meant, but a conformity in substance and intention. Thus, where the articles would, by legal construction, if literally followed, give to the husband an estate tail, Equity will carry them into effect by limitations in strict settlement. For, as Lord PURSUANT TO ARTICLES. Trevor v. Trevor. Chancellor Macclesfield said, in Trevor v. Trevor (a),"Articles are only minutes or heads of the agreement of the parties, and ought to be modelled when they come to be carried into execution, so as to make them effectual." The husband, Sir John Trevor, by the terms of the articles, would have had an estate tail which he could immediately bar. Therefore his Lordship held that the intention evidently was only to give him an estate for life; "otherwise the settlement would be vain and ineffectual; and if a settlement were made defective in any particular, it would not be final or conclusive, and a second settlement must be made till the uses were well and duly raised.” According to the report of this case in Peere Williams,(b) Lord Macclesfield said, "that marriage articles were in their nature executory, and ought to be construed and moulded in equity according to the intention of the parties. Now that intention, he held, was plain. And it would be a strange and vain construction of the articles, if Sir John should have such an estate by them, the limitations of which the very next day he might by a fine destroy." There would, in such a case, be no settlement at all. The reasoning of Lord Macclesfield was not only sound but supported by precedent (c); yet did the House of Lords hesitate in adopting it; Peere Williams, who was (a) 1 Eq. Ca. Abr. 387, pl. 7. See Journals of House of Lords, vol. 21, p. 221, where the judgment affirming Lord Macclesfield's decree is set out. (b) Vol. 1, p. 631. (c) The earliest case on the point is that of Jones v. Langton, in 1698, 1 Eq. Ca. Abr. 392, pl. 2, which was as follows:-Upon a marriage, articles were entered into, whereby it was agreed that the wife's portion should be laid out in the purchasing of lands, which should be settled on the husband and wife for their lives, and the life of the longest liver of them, and after, to the heirs of the body of the wife by the husband to be begotten; yet the Master of the Rolls, Sir John Trevor, decreed the settlement to be to the first and other sons, &c., so as the husband and wife might not have power to bar the issue. of counsel in the cause, informing us, that "an appeal was brought in Domo Procerum, where the matter was greatly debated by the Lord Chancellor and Lord Nottingham for the decree, and Lords Trevor and Harcourt against it; but at length it was affirmed without any division" (d). PURSUANT TO The general rule as to reforming settlements framed General rule. upon ante-nuptial articles, is thus laid down by Lord Chancellor Talbot (e) :—" Where articles are entered into : before marriage, and settlement made after marriage, different from the articles, this Court will set up the articles against the settlement." That is to say, the Court will order the settlement to be reformed. Where both the articles and the settlement are prior to the marriage, any discrepancy between them will in general be presumed to have arisen from some change of mutual intention while matters remained open; and, consequently, in such a case, the settlement will stand. For, as Lord Chancellor Talbot said in Legg v. Goldwire (f), "Where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them, and shall controul the articles." But suppose the settlement expressly to declare that it is made in terms of the articles, and yet to differ from them; in such a case the settlement will be reformed and made correspondent with the articles. A very remarkable instance of equitable interposition for this purpose occurred in the well-known case of West v. Errissey (g), West v. Errissey. where a settlement copying the very words of the articles was reformed, although both the articles and the settlement were made before the marriage. Upon this case, (d) See, also, Streatfield v. Streatfield, Forrest, 176; 2 P. Wms. 355,n. (e) Legg v. Goldwire, Forrest, 20. (f) Forrest, 20. PURSUANT TO Evidence of mistake must be clear. however, Lord Chancellor Talbot (h) remarks, that it does not contradict the general rule, which is, that where both the articles and the settlement are prior to the marriage, the settlement, if differing from the articles, shall be deemed a new agreement; but in West v. Errissey, "the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intention appeared to be still the same as it was at the making of the articles." The Court will not rectify a settlement on the ground of a mistake, unless the evidence, both as to the mistake and as to the real intention of the parties, be perfectly clear and satisfactory. Thus, in a late case (i), on the occasion of an intended marriage between the only son of an English marquis and the daughter of a Scotch earl, the terms of settlement were incorporated in "proposals" which were approved of by the respective fathers on behalf of their children. The "proposals," after sundry other stipulations, concluded with a proviso that the settlement should contain "all usual and necessary clauses." A settlement was accordingly prepared in London, of which the general provisions were in conformity with the terms of the proposals. And the marriage took place. Many years afterwards the Scotch earl died, leaving a large personal estate, out of which his daughter, unless barred by the settlement, would have been entitled to claim legitim (j). A bill was filed against the husband and wife, alleging, that, according to Scotch law, a clause barring this legitim was "a usual and necessary clause" within the meaning of the "proposals," and should, therefore, have been introduced into the settlement, (h) Forrest, 20; see, also, remarks of Lord Chancellor Loughborough in Randall v. Willis, 5 Ves. 275. (i) Marquis of Breadalbane v. Marquis of Chandos, 2 Myl. & Cr. 711. (j) Legitim is a term of Scotch Law, importing a child's proportionate share of the parent's personal estate, which the parent cannot defeat by testamentary disposition. |