1885 Giacometti v. Prodgers. GIACOMETTI V. PRODGERS. V.-C.M., July 10, 1872. [Law Reports, 14 Equity Cases, 253.] [1871 G. 51.] - V.-C.M. Sufficient Maintenance Marital Rights. Wife's Equity to a Settlement. The plaintiff filed a bill to establish her equity to a settlement of £6000, which accrued to her absolutely during her coverture. The husband, on the marriage, which took place in 1862, gave up an income of £400 a year at the desire of his wife, but he had no property and made no settlement. Subsequently to the marriage sums amounting to £56,000 consols were settled by the wife's mother and relatives upon her for life for her separate use, with remainder as to £200 a year for her husband for life, and subject thereto for the children. From 1862, she allowed her husband £100 a year till 1865, when he left her, and they had not since resided together. In 1870, the wife agreed, under pressure of a suit by the husband for restitution of conjugal rights, to allow him £300 per annum. She had saved out of her income £1000 a year for six years. There were two children, who were supported by the wife: Held, that the wife being amply provided for, and there being no proof of misconduct on the part of the husband, the Court would not interfere with his marital rights, and bill dismissed with costs. THIS was a bill filed by Caroline Giacometti, wife of Giovanni Giacometti, for a declaration that she was entitled, for the benefit of herself and her children, to an equity to a settlement of a sum of £6000, to which she had become entitled absolutely under the administration of the personal estate and effects of her aunt, Laura Blades. The plaintiff was married in London, on the 15th of February, 1862, to the defendant, Giacometti, a native 254] of Austria, *who was then a captain in the Austrian navy. At the time of his marriage he gave up, at the request of the plaintiff, an appointment in one of the Austrian Lloyds' ships which amounted to about £400 per annum, and had then little or no means of his own. At first the plaintiff and her husband were supported by the plaintiffs' mother, and no settlement was made before the marriage, but on the 9th of December, 1862, the plaintiff's mother executed a voluntary deed whereby she settled certain moneys on the plaintiff for life, to her separate use, without power of anticipation, with remainder as to £200 per annum on the defendant, G. Giacometti, for life, and, subject thereto, with remainder as to the whole of such moneys on the children of the marriage. On the 22d of December, 1862, the mother executed another deed poll, whereby she ap pointed the interest and produce of a further sum of money to be paid to the plaintiff for her separate use for life. Other moneys were also given by relatives, and the result was that the wife had for her separate use the income of £56,000 consols, the husband having under the settlements only the reversionary life interest of £200 a year. The plaintiff did not allow her husband to exercise any con V. CM. Giacometti v. Prodgers. 1872 trol over her separate property, but until the year 1865 she allowed him a yearly sum of £100. Soon after the marriage differences arose between the parties, and they lived together unhappily till 1865, when the husband left his wife and went abroad, and they had never resided together since that period. There were two children of the marriage, one ten and the other eight years of age. In March, 1870, in consequence of doubts having arisen in the plaintiff's mind whether her marriage was valid, she commenced a suit in the Divorce Court, praying that her two children might be declared to be the legitimate issue of herself and the defendant, and an order was made in accordance with the prayer. The defendant, G. Giacometti, had never in any way assisted in the support or maintenance of the plaintiff or of her children, nor had he ever settled any property upon them, but they had been always supported entirely by the plaintiff. The defendant had lately instituted a suit in the Divorce Court against the plaintiff for restitution of conjugal rights. The plaintiff *did not appear by counsel, and a decree was [255 made against her, when the plaintiff, to avoid compliance with such decree, assented to an agreement, which was carried out by a deed dated the 9th of February, 1871, whereby the plaintiff covenanted to pay to the defendant an annuity of £300 during her life, and after her death an annuity of £100, and that she would provide for her own maintenance and the maintenance and education of her children so long as they should be left under her sole control, and that she would indemnify the defendant against all demands that should be made against him in respect of her debts, liabilities, and engagements. And the defendant covenanted that he would not take any proceedings for compelling the plaintiff to live with him, and would not molest or interfere with her. By that agreement it was further provided, that nothing therein contained should affect any right of the defendant in respect of the money which had devolved upon the plaintiff as one of the next of kin of Laura Blades, or any other property to which she might thereafter become en titled. The plaintiff had saved out of her separate estate about £6000, which she charged with the payment of the annuity to the defendant. Allegations of misconduct and ill-treatment were made by the plaintiff against the defendant; but most of these allegations were struck out of the bill when amended. The defendant, on the other hand, denied having been in any way unkind to the plaintiff, and alleged that it was entirely 1872 Giacometti v. Prodgers. V.-C.M. through her own strange and unaccountable conduct that they had been unable to live together. These statements were confirmed by the evidence of the plaintiff's two brothers, who were on friendly terms with the defendant, and had on various occasions befriended and assisted the defendant in the difficult position in which he had been placed by the conduct of the plaintiff. Mr. Karslake, Q.C., and Mr. Willis, for the plaintiff: This is a case for the discretion of the Court, and we submit that the wife is entitled to have the whole fund settled upon herself and her children, The authorities upon the subject are collected in Macqueen's 256] *Law of Husband and Wife (1). In Dunkley v. Dunkley (2) the Court, under the circumstances of the case, directed the whole of a fund devolving upon the wife to be settled for the benefit of her and her children. In Green v. Otte (3) it was said to be usual for the Court to have regard to any settlement made upon the wife aliunde by the husband. Here there was none. In Gardner v. Marshall (*) reference was made to the large amount of property the husband had received from his wife, and the whole fund was there settled upon her and her children. In Gilchrist v. Cator (5) the whole fund was given to the wife; and so it was in Scott v. Spashett (6). These cases show that it has been the custom, where the circumstances justify it, for the Court to give the entire fund to the wife. The Court sits as arbitrator, and has a discretion either to give the whole or a part to the wife. In Vaughan v. Buck (7) only two-thirds of the dividends of a fund were given to the wife; but, under the special circumstances of this case, the Court can do no otherwise than order the whole fund to be settled upon the wife and children. Mr. Glasse, Q.C., and Mr. Shebbeare, for the defendant: The husband's legal right is to have the whole fund, but there are, no doubt, authorities where, under special circumstances, a portion, and sometimes the whole, has been given to the wife. The only ground for the interference of the Court to deprive the husband of his marital right is the poverty of the wife and her necessity for a sufficiency to support herself. It is true that M. Giacometti made no settlement upon his wife, but he had an income of £400 per annum when he married, with a fair prospect of rising in his profession and obtaining a much larger income. All this he gave up, at the request of his wife, upon the marriage. She allowed him no more than £100 for pocket(*) 14 Sim., 575. (1) Ed., 1872, p. 72. (*) 1 De G. & Sm., 188. (7) 1 Sim. (N.S.), 284. V.-C.M. Giacometti v Prodgers. 1872 money. It was only under pressure that the plaintiff consented to settle £300 per annum upon him; but this is only a very small portion of her property, as she has no less than £56,000, all invested in *the government funds, producing an in- [257 come of £2000 per aunum. That this is a most ample income is sufficiently proved by the fact that she has managed to save £1000 a year. There is no misconduct on the part of the husband. And even where there is a separation the Court has given the property to the husband, as in the case of In re Erskine's Trusts (1); no blame was there attached to either party, and the separation took place by mutual consent. Spicer v. Spicer (2) was even a stronger case, for it could not be said that the husband was free from blame, and yet the Court directed that the whole of the accruing fund should be paid to the husband. In Aguilar v. Aguilar (3) it was held that where a wife has an adequate settlement she is not entitled to any further portion of an accruing fund which the husband takes jure maritie, except in cases of desertion or insolvency; and in Aubrey v. Brown (*), where the husband has grossly misconducted himself, and where the wife had an income of only £260, still the Court gave the husband's assignees £250 out of a fund of £1150 to which the wife became entitled. Mr. Karslake, in reply. SIR R. MALINS, V.C.: This is a bill filed by Mrs. Caroline Giacometti, for the purpose of asserting her right to a settlement of a sum of about £6000, to which she has become absolutely entitled in possession during her coverture. At the time of the marriage between the plaintiff and G. Giacometti, in February, 1862, the lady having nothing to settle, no marriage settlement was executed. They lived together in a very unhappy manner till the year 1865, when it appears the conduct of this lady had become utterly intolerable to her husband, and I have no doubt whatever upon the evidence that he was absolutely obliged, if he expected ever to have an hour's comfort, to leave her, which he did. Up to this time, which was nearly three years after the marriage, the purse strings seem to have remained with the lady. During the coverture, there had been settled by the lady's mother and given by relatives no less a sum than £56,000 [258 consols, which became settled on the lady for her separate use, independent of her husband, producing a sum of about £2000 a year. But, notwithstanding her ample means, it never seems to have entered her mind that her husband was to participate in (1) 1 K. & J., 302. 92 (3) 5 Madd., 414. 1872 Giacometti v. Prodgers. V.-C.M. the enjoyment of their income, and she only allowed him a small pittance of £100 per annum, by way of pocket money. From the year 1865 to 1872, she continued to enjoy the whole of her property, and her means were so ample that she managed to amass a sum of between £6000 and £7000, or at least £1000 a year, during the absence of her husband. He has directly sworn, and I have no reason to doubt the accuracy of his statement, that at her request, and at her instance only, he gave up his occupation as an officer in the Austrian navy, and was left without any means of existence. In that state of things he instituted a suit in the Divorce Court for the restitution of conjugal rights, and though this lady could have had no difficulty in obtaining legal advice, she allowed the decree to be obtained by default on the 19th of December, 1870. There are two children of this marriage, aged respectively ten and eight years, and previously to the suit instituted in the Divorce Court by her husband this lady took proceedings in that Court, nominally to obtain a declaration of the legitimacy of her children, about which there could be no doubt, but from all that is stated of her strange opinions, the object of the suit must have been substantially to obtain a declaration of their illegitimacy, and that she was the mother of two bastard children. In order to avoid the consequences of the decree against her in the suit by her husband, the plaintiff was induced to come to an arrangement, which was carried out by a deed dated the 9th of February, 1871, by which she secured to the husband an income of £300 a year during his life, and he in his turn agreed by that deed not to molest her. It is in fact a separation deed. It was in the latter part of the year 1870 that the plaintiff became entitled to the £6000 to which she now asserts her equity for a settlement. In order to arrive at a conclusion in such a case, it is necessary to have regard to what the doctrines of the Court are 259] as to the *right of the wife to an equitable settlement. The principle is peculiar to the laws of England, and it proceeds upon this foundation. By the marriage the husband acquires the absolute right to all the personal property of the wife. But this Court allows the wife in a proper case to claim a settlement out of moneys accruing to her during the coverture. This property accrued to the wife during her coverture, and it is property, therefore, as to which she would be entitled to ask the Court to make a settlement upon her if the circumstances were such as to call for the interference of the Court. Now what are the circumstances which call for the interference of the Court? I have always understood that the basis |