deserts his wife. THE true purpose to which the income of the wife's Where husband property should be applied is the maintenance of herself and her husband. If, therefore, the husband desert his wife, leaving her unprovided for, the Court of Chancery will order the income of her property, when under its power, to be paid to the wife till the husband return to his duty. Thus, in Watkins v. Watkins (a) Lord Hardwicke said As it appears to the Court that the husband has gone out of the kingdom, without leaving a provision or maintenance for his wife, I decree that the interest arising from the trust money shall be paid to her till he thinks proper to return and maintain her as he ought. In Wright v. Morley (b), where the husband had quitted the kingdom, Sir William Grant, after reviewing the cases, observed There is no difficulty in giving the wife the dividends for her separate WIFE'S MAIN HER EQUITABLE use during the absence of her husband, supposing the fact proved that TENANCE OUT OF he has left her unprovided (c). That is not in evidence. There must, therefore, be an inquiry whether the husband lives abroad, and has made no provision for his wife. PROPERTY. Where his business compels him to move about. In such cases the Court will go out of its way to accommodate a deserted wife. Thus, in a suit for the administration of a testator's estate, the Master's report having been delayed, and it appearing upon the petition of one of the residuary legatees—an infant and a married womanthat she had been deserted by her husband, and that there was a probability of a large residue, inquiries were directed, by Lord Langdale, to ascertain the facts, and the probable amount of the petitioner's fortune, and what would be a proper allowance for her past and future maintenance (d). But as the wife engages to participate in all the necessary vicissitudes of her husband's fate, she is not entitled to represent herself as abandoned, merely because his professional avocations may prevent him from having any settled abode, or may force him out of the kingdom. Thus, in Bullock v. Menzies (e), where a woman of fortune had, perhaps somewhat indiscreetly, married a captain in a marching regiment, the Court, on her petition to have the dividends of property in which she had a life-interest paid to her separate use-she objecting to accompany her husband in his military peregrinations-refused her application, Lord Chancellor Rosslyn remarking— Here is an officer going from place to place, in the course of his duty, but willing to receive his wife. I cannot-because a woman does not choose to live with her husband-give her a separate alimony. It is (c) See also Colmer v. Colmer, Mos. 121, and Sleech v. Thornington, 2 Ves. sen. 561, where Sir Thomas Clarke, M.R., says, "Where the husband was gone abroad, and left his wife unprovided for, the Court directed payment of the interest to the wife, until the husband returned and maintained her as he ought." (d) Coster v. Coster, 1 Keen, 199. (e) 4 Ves. 798. his property in her right; and he is willing to support her and himself out of this fund. WIFE'S MAIN- HER EQUITABLE prison. When we say that the wife engages to participate in all the necessary vicissitudes of her husband's fate, it does not where he is in follow that she is bound to reside with him in prison, (even although he urge her to cohabit with him there), particularly if his incarceration be the result of his misconduct; and if, in other respects, his behaviour betray a want of proper feeling towards his wife. In such circumstances, where the wife has property subject to equitable jurisdiction, the Court will allow her a separate maintenance out of it; as appears by the following case, of which there is but an imperfect, though very long, report in Cox (ƒ). In Atherton v. Nowell, the wife, when only seventeen, had been induced to marry upon the false representation of her husband that he was a man of fortune, when, in fact, he was insolvent; and it appeared that a few months after the marriage, he was thrown (in 1777) into the Queen's Bench prison, where he remained till discharged by the London rioters of 1780, his wife constantly attending him, and enduring many hardships in that confinement. In 1782, he was again incarcerated, and was still unreleased in 1786, when the case came before the Court; the wife, in her application, stating that she had implored her husband to allot some fixed provision for herself and her infant child of the marriage, but that this he constantly refused to do, requiring her to cohabit with him in the prison, or to be at his mercy for such occasional support as he might think proper to bestow on her; and that from his behaviour to her, as well as on account of her own health, she was afraid of living with him any longer in gaol; adding likewise, that she was become entitled for life to the dividends of about 13007. Bank Annuities, standing in the name of the accountantgeneral in trust in the cause; and that she and her child, being destitute, craved the protection of the Court, and prayed a reference to inquire what would be fit and proper to be allowed and paid for the future maintenance and support of herself and her child, until further order. The Lord Chancellor Thurlow, notwithstanding a cross petition by the (f) 1 Cox, 229. WIFE'S MAIN TENANCE OUT OF Distinction be. tween income and principal. refuses to make a settlement. husband praying that the dividends might be paid to him, ordered that 50%. cash in the bank should be paid to the wife for her separate use, and directed an inquiry so as to ascertain in what manner the growing produce of the annuities ought to be settled. No further notice of the case appears; but if we take away the fact of imprisonment, the other circumstances ought scarcely to have deprived the husband of the income of his wife's property; he offering to receive, live with, and adequately maintain her. It was not a case of actual cruelty; and the allegation of the deception practised before the marriage is too vague for the Court to have rested upon. Even where the Court will not part with any portion of the principal fund, it will allow the income to be paid to the husband so long as he resides with his wife. And this, even though he refuse to make a settlement; for (notwithWhere husband standing what is said to the contrary by Mr. Roper) (g), a husband is under no legal obligation to make a settlement on his wife. The Court, indeed, may refuse to surrender the principal fund till a settlement is made, but the husband is not chargeable with misconduct for noncompliance; as appears very plainly from the following remarks of Sir Thomas Clarke, M. R., in Sleech v. Thornington (h). Various instances have been where the wife has insisted that the husband should have nothing; but the Court has not thought itself empowered to take from the husband the wife's fortune so long as he is willing to live with her, and to maintain her, and no reason for their living apart; even where the husband will not come in before the Master, the Court will not go so far as to do anything in diminution of the husband's right, so as to take away the produce from him, or prevent his receiving the interest; but constantly, where he maintains the wife, accompanies the direction for a suspension (of the principal) with a direction for payment of the interest to the husband. (g) 1 Rop. Husband and Wife, 276, et seq. (h) 2 Ves. Sen, 561. But the husband's refusal to make a settlement will beget a just jealousy in the mind of the Court; and when accompanied by other unpropitiatory circumstances, will be a reason for withholding the income from the husband, and allowing it to accumulate for the benefit of the wife even where he does live with her, and properly maintains her. Thus, ; In Bond v. Simmons (i), before Lord Hardwicke, it appeared that a legacy of 500l. was left to Mrs. Bond before her marriage with the plaintiff, who, although he had at different times received at least 20007. from other parts of the wife's fortune, never could be prevailed upon to make any settlement or provision for her; upon which the executor refused to pay the legacy, and the husband filed his bill. The Court referred it to the Master to receive proposals for a settlement. The Master certified that the husband had never laid any proposals before him. The executor petitioned to be eased of the burden of the demand, and the Court, on his offering to pay in the money, directed the accountantgeneral to lay it out in South Sea Annuities for the benefit of the husband and wife, subject to the further orders of the Court. The husband died, whereupon his executor insisted that although the fund with its accumulations was a chose in action of the wife, yet by the decree and order on the accountant-general to lay it out as aforesaid, the property vested in the husband, and he was entitled to it in consequence of his maintaining his wife at the time. The Master of the Rolls (Fortescue) decided, on petition, that the principal belonged to the wife, and the dividends to the husband's representative. But upon.appeal the Lord Chancellor (Hardwicke) held, that although, if the legacy had been the only portion of the wife, the husband would have been entitled to the dividends for her maintenance, yet, inasmuch as he had received the bulk of her fortune, and only a small part remained, and as he had perversely refused to make a settlement, the Court would have stopped the payment, not only of the principal, but of the interest also, that it might accumulate for the benefit of the wife, (unless he were starving), and inasmuch as the direction to the accountant-general was not for the benefit of the husband, but to secure the property against him, therefore his Lordship directed that so much of the order of the Master of (i) 3 Atk. 20. WIFE'S MAIN TENANCE OUT OF |