applies where the settlement is after marriage and on Post-nuptial valuable consideration between husband and wife (u). settlement But in order to make valid against the husband's cred- for value. itors a post-nuptial settlement of furniture or other personal chattels of which the husband or husband and wife jointly retain the apparent possession it must be registered as a bill of sale, although supported by a valuable consideration (v). And there seems no reason why a mere voluntary Voluntary. post-nuptial settlement of furniture or of stock in trade to enable the wife to carry on a separate trade, registered as a bill of sale, and made when the husband was nct indebted, and without meaning to defraud subsequent creditors, should not be valid against his creditors although the transfer was not followed by any apparent change of possession (w). *The provisions of a marriage settlement [*341] Settlement cannot extend to what was not contemplated by the on re-marriage after parties at the time; and whether or not a re-marriage divorce. between a husband and wife previously divorced would be valid, it is certain that the children of such a union could not take any benefit under a settlement made on the first marriage of their parents, because such an event could not have been within the intention of the parties to the deed (x). In Carr v. Taylor (y) the question was said to be whether the husband was purchaser of the whole fortune of his wife including any future accessions, or only of that which he was actually to receive with her at marriage; and that, to make him a purchaser of the whole, the settlement must clearly express or import that intention. All the limitations to the husband, wife and issue are All limitaprotected by the marriage consideration. So it was tions to said in Nairn v. Prowse (z): "Every provision with husband, regard to the husband and wife falls directly within the wife, and consideration; and the wife is interestsd in the provision tected. for the husband as well as that for herself. The mar (u) Arundell v. Phipps, 10 Ves. 139, 150. (v) Ashton v. Blackshaw, L. R. 9 Eq. 510; ante, pp. 147, 153. (w) See Dewey v. Bayntun, 6 East, 267; ante, pp. 36 et seq. (x) Bond v. Taylor, 2 J. & H. 473; Essery v. Cowlard, 26 Ch. D. 191; ante, p. 334; post, pt. v. ch. v. (y) 10 Ves. 578. (z) 6 Ves. 758; post, pp. 342 et seq. issue pro Even after death of wife. riage is consented to in consideration not only of her interest in the event of survivorship, but of his income and the provision he is thereby enabled to make for her and her children during his life. It is not material that when the provision is made for the husband it may be liable to his debts" (a). Even after the death of the husband or wife without issue the consideration of the marriage remains (b). husband and So if a settlement is made by a father, upon the mar riage of his son, upon the husband and wife for their lives, and afterwards upon the children, and the wife dies without any issue, and therefore the husband is the only object, it could not be contended that the father's cred itors could impeach that settlement and take from the son the provision for his life (c); and a settlement of [ *342 ] lands may, after *the death of husband and wife and issue, be enforced by the heir if the covenant or if any of the uses of the settlement subsist at the death of the covenantor (d). Settlement The consideration will be extended also to a settlement made on mar-made on the marriage of a stranger, for it is not from riage of a the relationship between the settlor and the settlee that the creditors or purchasers are debarred (e) stranger, good. By married woman of separate estate. Considera tion of marriage the same whether any portion or not. A married woman might even before 1883 charge her separate property by a gift on marriage to a stranger, who would not be considered a volunteer (ƒ). The value of the marriage consideration is apart from and independent of any money consideration which may pass between the parties by way of portion or other. (a) See also Lane, 22; Pulvertoft v. Pulvertoft, 18 Ves. 92; Barham v. Clarendon, 10 Hare, 126. (b) Jeston v. Key, L. R. 6 Ch. 610. (c) Nairn v. Prowse, 6 Ves. 752-9; and see O'Gorman v. Comyn, 2 Sch. & Lef. 148. Divorce does not give the Court jurisdiction to set aside the marriage settlement: Evans v. Carrington, 29 L. J. Ch. 330. See Merryweather v. Jones, 10 L. T. (N.S.) 62. As to the jurisdiction of the Probate Division to alter a marriage settlement, see 22 & 23 Vict. c. 61, s. 5; Sykes v. Sykes, L. R. 2 P. & D. 163; Gladstone v. Gladstone, 1 P. D. 442; Benyon v. Benyon, 1 P. D. 447; 41 Vict. c. 19, s. 3; Yglesias v. Yglesias, 4 P. D, 71; Ponsonby v. Ponsonby, 9 P. D. 122. (d) Lechmere v. Carlisle, 3 P. Wms. 211; Barham v. Clarendon, 10 Hare, 132-3. (e) Nairn v. Prowse, 6 Ves. 752-9. (f) Power v. Bailey, 1 Ball & B. 49; and see now 45 & 46 Vict. c. 75. wise, so that the quantum or inequality of pecuniary benefit does not in general affect the question (g). The question how far the consideration of marriage Extent of extends is one of great difficulty, and has given rise to consideraa series of conflicting and inconsistent decisions from a very early period. tion of marriage. The general rule has been laid down to be that the Consideravaluable consideration of marriage extends only to tion of marsupport interests given to the husband, the wife, and riage only supports the issue of the marriage, and to no other person or per- limitations to sons (h). Two exceptions, however, were made to this general rule-one *was in favour of settlements made [ *343 ] by a widow before marriage on her children or other issue of a former marriage, or even on her illegitimate children (i); the other was in favour of settlements made on the issue of either the husband or the wife by a future marriage (k). According to this view, when other limitations were supported it was, either because they came within one of these two exceptions, or because of the considerations of the particular contract which extended to, and comprehended, the various interests of all the parties to the contract. husband, tions. As to the general rule, in several cases the marginal Effect of some head-notes state that the case shews that the considera- old cases mis stated in marginal (g) Ex parte Marsh, 1 Atk. 158-9; Brown v. Jones, 1 Atk. 188, notes. 190; North v. Ansell, 2 P. Wms. 618; Harvey v. Ashley, 3 Atk. 607; Ramsden v. Hylton, 2 Ves. 309; Prebble v. Boghurst, 1 Sw. 309, 319; Nairn v. Prowse, 6 Ves. 752, ante, p. 341. (h) Case of St. Saviour's in Southwark, Lane, 21, 22; Osgood v. Strode, 2 P. Wms. 245; Johnson v. Legard, 6 M. & S. 60, S. C. in Chancery, T. & R. 281; Sutton v. Chetwynd, 3 Mer. 249; Stacpoole v. Stacpoole, 4 Dr. & War. 320, S. C. 2 Con. & Law, 489; Ford v. Stuart, 15 Beav. 495; Cotterell v. Homer, 13 Sim. 506; Clarke v. Wright, 6 H. & N. 870; Smith v. Cherrill, L. R. 4 Eq. 390; Price v. Jenkins, 4 Ch. D. 483; Gale v. Gale, 6 Ch. D. 144; Mackie v. Herbertson, 9 App. Cas. 303. See infra, where the above cases are all cited. (i) Newstead v. Searles, 1 Atk. 265; Clarke v. Wright, 6 H. & N. 849; Gale v. Gale, 6 Ch. D. 144 ; infra, p. 349. (k) Jenkins v. Keymis, 1 Lev. 150, 237, Hardr. 395, 1 Ch. Ca. 103; Den. d. Vernon v. Ogle, Lofft, 216-7; Sutton v. Chetwynd, 3 Mer. 249; Clayton v. Wilton, 3 Mad. 302, n., 6 M. & S. 67; In re Cullen's Estate, 14 Ir. Ch. Rep. 506; Wollaston v. Tribe, L. R. 9 Eq. 44; Mackie v. Herbertson, 9 App. Cas. 303; infra, p. 350. 28 STAT. OF ELIZ. (5435) Clarke v. Smith v. Mackie v. tion of marriage runs through all the estates raised by the settlement; whereas, on reading the case, it appears this is not the fact, but that the decision went on the particular circumstances (1). In the oldest reported case on the subject (m) it was held "that if a man doth, in consideration that his son shall marry the daughter of B., covenant to stand seised to the use of his son for life, and after to the use of other his sons in reversion or remainder, these uses thus limited in remainder are fraudulent against a pur, chaser, though the first be upon good consideration, viz., for marriage." In Harvey v. Ashley (n), Lord Hardwicke said: "The children born of the marriage are equally purchasers under both father and mother. So Lord Chief Justice Cockburn said in Clarke v. Wright (o): "I can come to no other conclusion than that a limitation in a marriage settlement in favour of the relations of the settlor, other than the issue of the marriage, is not within the consideration of the marriage, and therefore, in the absence of any other consideration, must be taken to be voluntary." In the case of Smith v. Cherrill, (p), Sir R. Malins, V.C., said: "I have [344] always understood and still understand * the law, as it was settled by the case of Johnson v. Legard (q), and by the same case as decided by Lord Eldon (r), and by many other cases, to be this: that when a marriage settlement goes beyond the immediate objects of the marriage, and (as in this case) there are provisions for collateral relatives from whom no valuable consideration moves, then, quoad those objects, the settlement has nothing to do with the marriage, but is to be considered as a settlement purely for the purpose ef providing for those relatives." So in the most recent case of Mackie v. Herbertson (s), in the House of Lords (though a Scotch decision), Lord Selborne, L. C., said: "The considerations of the contract, though founded on marriage, must, I appre (1) Ithell v. Beane, 1 Ves. 215; Jenkins v. Keymis, 1 Lev. 150 ; Stephens v. Trueman, 1 Ves. 73; White v. Stringer, 2 Lev. 105; see Price v. Jenkins, 4 Ch. D. 483. (m) St. Saviour's in Southwark, Lane, 21, 22. See also 2 Roll. Abr. 784. (n) 3 Atk. 610. (0) 6 H. & N. 870. (p) L. R. 4 Eq. 390. (q) 6 M. & S. 60, S. C. 3 T. & R, 281. (r) T. & R. 281, S. C. 3 Mad. 283. (8) 9 App. Cas. 337. hend, extend to all those terms of the contract on which depend the interest of the persons who are within the consideration of marriage; and when they take only on terms which admit to a participation with them others who would not otherwise be within the consideration, then not the matrimonial consideration properly so-called, but the considerations of the mutual con tract extend to and comprehend them." The general rule was first clearly and definitely laid Osgood v. down in Osgood v. Strode (t), where (although a case Strade. in which limitations to collaterals were held valid from their having considerations other than that of the marriage to support them) Lord Macclesfield said: "The marriage and marriage portion support only the limitation to the husband and wife, and their issue; this is all that is presumed to have been stipulated for by the wife and her friends." This case was clearly put on the footing of a contract, the extent of which is, by presumption of law and by the reason of the value attached to the consideration of marriage, confined to the immediate objects of the marriage. Lord Hale's decision in Jenkins v. Keymis (u) at first Jenkins v. sight appears to be opposed to this, where he is re- Kymis. ported to have said: "The consideration of the marriage and of the marriage portion will run to all the estates raised by the settlement, although the marriage is not * concerned in them so as to make them [* 345 ] good against purchasers and to avoid a voluntary conveyance,”-words which have been often cited to shew that at that time it was thought that the marriage consideration would uphold any limitations in a settlement. But it is hard to see why these words should be carried beyond their most natural meaning, which is that they laid down no general proposition, but referred only to "the settlement" in that case. This not only reconciles this case with all the other authorities, but is confirmed by a case (v) decided a few years afterwards, in which the same judge took part, and where a limitation in a marriage settlement to a brother of the hus (1) 2 P. Wms. 245, 255, commented on in Price v. Jenkins, 4 Ch. D. 489, 490. See also Staplehill v. Bully, Prec. Ch. 224; Reeves v. Reeves, 9 Mod. 132, per Lord Macclesfield; Basse v. Gray, 2 Vern. 693; Gray v. Legard, 9 L. J. Ch. (O.S.) 80; Ford v. Stuart, 15 Beav. 499. (u) 1 Lev. 150, 237, Hardr. 395, 1 Ch. Ca. 103; and see note (y) next page. (v) Roscarrick v. Barton, 1 Ch. Ca. 217, 220. |