C. B., and each of them, their and each of their executors and administrators, that they the said D. E., F. E., A. B., PRECEDENT FOR SETTLING A WILL. Secus as to But, if a life interest, or other property be given to a married woman for her separate use, without any restriction on her anticipation of it, she can dispose of it in her husband's lifetime: Major v. Lansley, 2 Russ. & My. 355; whether it be immediately receivable property settled or reversionary, see 2 N. R. 224. use. interests in personalty and in real estate and chattels real. to her separate But there is a distinction between the wife's reversion in chattels Distinction personal, i. e. in the wife's choses in action, and her reversion in between wife's chattels real or in terms of years: 16 Beav. 41. At law, a husband may dispose of the wife's term of years which is vested in him, whether the wife's beneficial interest in it is in possession, reversion, or contingency: Donne v. Hart, 2 Russ. & My. 360; see too 1 Russ. 9, n. (b); Co. Litt. 351, a., n. 11; Major v. Lansley, 2 Russ. & My. 355; Box v. Jackson, Drury, 84; but the power of the husband to make such a disposition depends upon the circumstance, whether his wife's interest could have vested in possession during the coverture; he has no power to dispose of it if it cannot by possibility so vest in her: Duberley v. Day, 16 Beav. 33. If the wife has the absolute interest in personal property (with the exception perhaps of a term for years), which cannot be reduced into the possession of the husband without the aid of a Court of equity (as where the property is in Court, or is vested in trustees), and the husband applies to the Court for the purpose of reducing the property into his possession, the Court acting upon the maxim that he who seeks equity must do equity, will not, except with his wife's consent, give it up to him without requiring him to make a suitable settlement on her of at least a part of the property, or of some other property for her due maintenance in case of her surviving him: Pope v. Crashaw, 4 Bro. C. C. 326; Worrall v. Marlar, 1 Cox, 153; 1 P. Wms. 458, n. (1); Kensington v. Dollond, 2 M. & K. 184; Re Cutler, 14 Beav. 220; Re Kincaid, 1 Drew. 326; Hanson v. Keating, 4 Hare, 1. This right on the part of the wife is termed her equity to a settlement; it may be asserted by her as plaintiff in a suit: Lady Elibank v. Montolieu, 5 Ves. 737; and it holds good both against the assignees in bankruptcy and insolvency of the husband, and against his particular assignees: Re Welchman, 1 Gif. 31; Archer v. Dowsing, 32 L. J. 269, Ch.; Duncombe v. Greenacre, 29 Beav. 578; except in the single case, the principle of which it is not easy to understand, that, where an equitable life interest is given to the wife, the husband, or his particular assignee for valuable consideration, is permitted to enjoy it without the consent of the wife, and without making any provision for her: Elliott v. Cordell, 5 Madd. 149; Stanton v. Hall, Wife's equity to a settlement of personalty. Does not extend to her equitable life interests. PRECEDENT FOR SETTLING THE CON STRUCTION OF A WILL Equity to a settlement personal to wife. How wife's equity may be barred. M. B., R. S., and T. S. respectively, and their respective executors and administrators, will and shall abide by and 2 Russ. & My. 180; Tidd v. Lister, 10 Hare, 140-154; S. C., 3 De G. M. & G. 857; Re Duffy's Trust, 28 Beav. 380. But as this right depends upon the supposed ability of the husband to support the wife, if that ability obviously ceases at the date of the act of assignment, e. g. if the husband become bankrupt or insolvent, the wife's equity to a settlement out of her equitable life interest arises against the general assignees: Elliott v. Cordell, supra, and cases there cited. The equity to a settlement is, however, personal to the wife; and although the settlement usually ordered includes a provision for the children, the wife may waive the right without any regard to their interest: Murray v. Lord Elibank, 10 Ves. 84; S. C., 13 Ves. 1; Fenner v. Taylor, 2 Russ. & My. 190; Re Ann Walker, L. & G. 299; but the wife, having once insisted on her right, cannot afterwards waive it: Barker v. Lee, 6 Madd. 330; Whitten v. Sawyer, 1 Beav. 593. The children have no equity if the wife die before a decree has been made by the Court: Scriven v. Tapley, 2 Eden, 337; S. C., Amb. 509; De la Garde v. Lempriere, 6 Beav. 344; Baker v. Bayldon, 8 Hare, 210; or if she has gained the whole interest by survivorship: Johnson v. Johnson, 1 J. & W. 472; but if she die after the decree, it will be carried out for the benefit of their children: Groves v. Clarke, 1 Keen, 132; S. C., 6 Sim. 584. The wife's equity cannot be enforced until the time arrives when this fund becomes payable to the husband: Osborn v. Morgan, 9 Hare, 432. In deciding on the proportion of the fund which is to be settled, the Court takes into consideration any previous settlement which may have been made, and the conduct of the husband: Erskine's Trust, 1 K. & J. 302; Dunkley v. Dunkley, 2 De G. M. & G. 390; Marshall v. Fowler, 16 Beav. 249; Gent v. Harris, 10 Hare, 380; and, under peculiar circumstances, will settle the whole fund: Re Merriman's Trust, 31 L. J., N. S., Ch. 367; Smith v. Smith, 7 Jur. N. S. 539; Koeber v. Sturgis, 22 Beav. 588; but usually only one-half of it. As to the proper form of such a settlement, see Carter v. Taggart, 1 De G. M. & G. 286; see further as to a wife's equity to a settlement, 1 L. C. Eq. 348, 356, and cases cited 29 Beav. 582, n. The wife's equity may be barred by payment of the fund to the husband before any suit has been instituted: 10 Ves. 90; 4 Ves. 18; or by her misconduct: Eedes v. Eedes, 11 Sim. 569; or by a settlement made before marriage, and containing a contract to that effect, provided the wife be of age at the time of the marriage: Salway v. Salway, Amb. 692, Blunt's Edition, and cases there cited, n. 2: Garforth v. Bradley, 2 Ves. sen. 675; Lady Elibank v. Monto lieu fulfil the arrangement intended to be made by these. presents; and shall and will, at all times hereafter, at 6 Ves. 637; and it may be waived by her personal appearance and examination in Court. At law a husband can effectually dispose of his wife's real estate, without her concurrence, during their joint lives and during his tenancy by the curtesy if he survive her; but it has been held that where the husband's grantee has to enforce his rights in equity the wife could insist on a settlement out of the estate during the joint lives: Sturgis v. Champneys, 5 My. & Cr. 97; and that the wife could claim such a settlement in a suit in which she was plaintiff: Wortham v. Pemberton, 1 D. G. & S. 644; Barnes v. Robinson, 1 N. R. 257. The decision in Sturgis v. Champneys being opposed to the principle that Courts of equity, in dealing with pure equitable estates ought to follow the law, has been frequently disapproved of, and if it has not yet been over-ruled it cannot now be relied on as an authority for more than the proposition that the husband's assignees in insolvency or bankruptcy cannot, as plaintiffs, enforce their rights in equity without making a settlement on the wife. The particular grantee of the husband is not bound to make such a settlement: Re Cumming, 2 D. G. F. & J. 376; Durham v. Crackles, 1 N. R. 165; Gleaves v. Paine, 1 N. R. 249. PRECEDENT FOR SETTLING Wife has no equity to a settlement out of real estate as against husband's grantee qy., if she has against his assignees in bankruptcy. The statute 18 & 19 Vict. c. 43, enables every infant not under Settlement by infants. twenty, if a male, and not under seventeen, if a female, to make a binding settlement on marriage, provided the sanction of the Court of Chancery be obtained; but unless made under the provisions of that Act, the settlement of a female infant's reversionary interest in choses in action will not be binding as against her surviving, though she may, while discovert, adopt it, if for her benefit: Ashton v. M'Dougall, 5 Beav. 56. As to settlements by infants, see post, Settlements, Vol. III. In concluding the subject discussed in this note, it will be desirable to state the principal points which have been decided as to what constitutes a reduction into possession by the husband of the wife's choses in action. Of course, an actual payment or transfer to the husband or to his account is a reduction into possession: Glaister v. Hewer, 8 Ves. 195; Ryland v. Smith, 1 My. & Cr. 53; Re Jenkins, 5 Russ. 183; and that, notwithstanding it has been made during the life of a prior tenant for life: Doswell v. Earle, 12 Ves. 473; and where a woman, being entitled to two sums, one secured by a mortgage in fee to herself and the other to a trustee for her, married, and, the mortgagees when applied to being unable to pay the sums, the trustee paid them to the husband, and the husband died leaving the mortgages untransferred, it was held, that he had reduced both sums What consti tutes a reduction into possession. PRECEDENT FOR SETTLING THE CONSTRUCTION OF A WILL. How the interests of married women are dealt with in practice. the cost of the said residuary estate of the said Y. Z,, execute and do all such assurances and things, for the further or more perfectly confirming and carrying into into possession: Rees v. Keith, 11 Sim. 388. A transfer of stock to The receipt or possession by the husband as an executor or trustee of the fund, or the payment of it by his directions to trustees for his wife, is not a reduction into possession: Baker v. Hall, 12 Ves. 417; Wall v. Tomlinson, 16 Ves. 413; Ryland v. Smith, 1 My. & Cr. 53. In practice, the difficulty which exists in dealing with the reversionary interests and choses in action of married women is guarded against by appropriate life assurances; but where the wife's equity to a settlement arises, the only way in which a disposition of the wife's choses in action can be effected, is by taking a covenant from the husband, that she shall ratify the disposition. This is the mode pursued in the text, but it is sufficient only when the covenant of the husband can be relied on for furnishing a proper indemnity. PRECEDENT FOR SETTLING A WILL. 38. Mutual covenants for and wives by the executors to fulfil the arrangement. effect the arrangement aforesaid, and for indemnifying and saving harmless the said N. P., G. H., and C. B., and every of them, their and every of their executors, administrators, and assigns, in the conduct thereof, as by the said N. P., G. H., and C. B., or any of them, their, or any of their executors or administrators, shall be reasonably required: AND EACH of them the said N. P., G. H., and C. B., so far as relates to his own themselves acts and deeds, and the acts and deeds of his executors and administrators; and the said N. P. and G. H., so far also as relates to the acts and deeds of their respective wives (both during coverture and after they may have become discovert), and of the executors and administrators of their respective wives, doth hereby, for himself, his heirs, executors, and administrators, covenant with the others and other of them, their and his executors and administrators, that they the said N. P., Q. P., G. H., I. H., and C. B. respectively, and their respective executors and administrators, will and shall abide by and fulfil the arrangement intended to be made by these presents; and shall and will, at the costs and charges of the said residuary estate of the said Y. Z., execute and do all such assurances and things for the further or more perfectly confirming and carrying into effect the arrangement aforesaid, and for indemnifying and saving harmless the said N. P., G H., and C. B., and every of them, their and every of their executors, administrators, and assigns, in the conduct thereof, as by the said N. P., G. H., and C. B., or any of them, their, or any of their executors or administrators, shall be reasonably required. IN WITNESS, &c. |