DEEDS. SECUR ING THE WIFE'S Chancellor Hardwicke decided against the represent- POST-NUPTIAL atives; observing that there had been no contract on the part of the wife, "who was herself incapable of contracting, and had neither father nor guardian to contract for her " (g). Upon the same principle it seems to follow that a postnuptial settlement by the husband cannot bar the wife's equity to a settlement. a settlement. Deed of settlewife's equity bankrupt or ment securing the where husband is insolvent ; Where equitable property comes to the wife during the nor her equity to coverture, and where the husband has not acquired right to it as a purchaser (h), she is entitled to have a settlement out of it against the husband or against his assignees, if he be bankrupt or insolvent. The deed to be prepared for the purpose of securing her equitable rights does not require judicial approbation to make it valid; for if the nature of the case be such that a Court of Equity would decree a settlement, and if the settlement made by private arrangement be such as a Court of Equity would sanction, the deed will be as good and as unimpeachable by third parties, as if actually executed under the orders of the Court. It is sometimes thought expedient, even where the parties are agreed, to file a bill for the purpose of having an instrument drawn up in the Master's office, under the impression that the Court "will support its own acts" (i). But in most cases this is an unnecessary expense. (g) "It does not appear," says Mr. Jacob, (1 Rop. 305,) "that the sanction of the wife's father, guardian, or trustee, could give any additional effect to the settlement as against her in the event of her surviving. See Stamper v. Barker, 5 Madd. 157. The same remark applies as to contracts by infants, with the concurrence of guardians. See supra, p. 248. (h) See supra, p. 266. (i) This maxim (if it be a maxim) POST-NUPTIAL DEEDS. SECUR EQUITY. the sanction of the Court. Instead, therefore, of calling upon the Court to prepare ING THE WIFE'S a deed of settlement, giving the wife the benefit of her equity, the thing may be done as well and as effectually does not require by private arrangement; the parties consenting to have the instrument framed upon the principles which the Court, on a bill filed, would approve of. What those principles are, and what rules have been established for their observance and enforcement, I have before endeavoured to set forth (k). Thus, suppose a wife becomes entitled to a trust fund— or suppose a legacy is left to her-and that her husband is involved in debt. In such a case it will be desirable to have the money, (or so much of it as, according to the practice of the Court, it is usual to allow for the purpose,) settled upon the wife and the children. If the husband will do this voluntarily, and if the trustees of the fund will assent to the arrangement, there seems no reason why the deed should not be as effectual and as good against creditors, as if a bill were filed and the instrument prepared and executed under the authority of the Court. There are, however, many considerations to be attended to in framing a deed of this nature; and when the expense of a suit can be afforded, it may be better for the wife, by her next friend, to file a bill against her husband and against the trustees of the fund, praying a settlement. under the impression that any defect instances to the same effect might be cited. The maxim in question is not to be found in the cases relied upon by Mr. Roper, nor have I seen it anywhere besides. (k) See "Wife's Equity to Settlement," supra, from p. 68 to p. 98. CHAPTER III. EQUITABLE RIGHTS OF MARRIED WOMEN. SECTION I. OF THE SEPARATE USE, ITS ORIGIN AND NATURE. AT common law the disabilities of coverture entirely precluded the wife from the enjoyment of property; for whatever belonged to her while single, or came to her while covert, passed absolutely to the husband, or fell under his dominion (a). In vulgar phrase, what was hers (a) In the service of the Church of England for the celebration of marriage, the man is made to say to the woman, X THE SEPARATE separate use common law. unknown at USE. THE SEPARATE became his, and what was his remained his own. She could possess nothing to her separate use; she could alienate nothing in her life time; she could bequeath nothing at her death (b). Such were, and such are still, the rigid maxims of the English marriage law. Inability of the wife to enjoy or dispose of property at law. the separate use by Courts of Equity. These maxims, with certain arbitrary consequences which attended them, might perhaps have been adapted to the habits of former times. But when the nation became civilised, other rules were demanded; and Equity, whose function it is to make the law work justice by accommodating its operation to the altered circumstances of society, attained that end, in the case of married women, chiefly by Establishment of the introduction of the doctrine of separate use; a doctrine of the deepest importance, established by the Court of Chancery, under the wise administration of a succession of great men, without any help from the legislature. Hence it is that in Equity a married woman is now enabled to enjoy property independently of her husband. And the effect is, to protect her from the consequences of his improvidence, misfortunes, or misconduct, under a law which gives him a power, almost unlimited, over her person and her estate. This, therefore, is the purpose for which the separate use has been devised; and, whatever may have even after her death before probate. And if he die before his wife the will is void, so far as it derives validity from his consent. For it may be valid in other respects; as if it be in execution of a power, or if it pass the right of representation to a third person to whom she was executrix. See Williams on Executors, where this subject of wills by married women is fully treated of; and see also Roper on Husband and Wife, vol. 1, p. 169, et seq. been thought of it formerly, the profession and laity seem now to be agreed that the benefits secured by it greatly more than counterbalance the evils to which, in some instances, it may undoubtedly give rise. I shall not here attempt an antiquarian review of this remarkable creation. Obscure and doubtful indications of it are discernible so early as the reign of Queen Elizabeth. It seems to have been plainly recognised by Lord Nottingham, Lord Somers, and Lord Cowper. In Lord Hardwicke's time it was perfectly established; but it was not fortified and made secure till Lord Thurlow sanctioned the clause against anticipation; whereby the wife, for whose benefit this fabric has been reared, is precluded from destroying it (c). THE SEPARATE USE. acquired. The wife's separate property may be acquired by contract How it may be with the husband before marriage, or by gift, either from him or from any stranger, wholly independent of such marriage (d). In respect of her separate property, the wife (subject to certain qualifications and restrictions, adverted to hereafter), is regarded in Equity as a femme sole. She has not only a right of enjoyment, but a power of disposition entirely free from the control of her husband. The separate use exists only in the married state: it ceases on the dissolution of the marriage. The legal rights of the husband, therefore, are not encroached upon beyond the coverture. For if he survive his wife, his position with reference to her property, whether real or personal, will be the same as if it had never been settled to her separate use. Wife regarded as a femme sole in does not affect beyond the cover the husband ture ; But then it must be remembered that a wife who holds but wife may de (c) See Pybus v. Smith, 4 Bro. C. C. 485, and remarks of Lord Langdale, in Tullet v. Armstrong, 1 Beav. 22. (d) Per Lord Langdale, in Tullet v. Armstrong, 1 Beav. 21. feat his claim. |