her hus or without tion. an assign- the husband may dispose of these with or without valuable ment by consideration, without making any settlement upon her in band, with respect of them. This was decided, for the first time, in considera- Sir Edward Turner's case, on an appeal to the House of Lords, who held, that a term being assigned in trust for a feme covert by her former husband, and she afterwards intermarrying with the Lord Chief Baron Turner, who had aliened the term, the same was well passed away, and that the husband might dispose thereof. This decision was followed in the next term by Lord Nottingham, in the case of Pitt v. Hunt, but his Lordship expressed great dissatisfaction on the occasion. Tudor v. Samynek was of a similar description, and was decided in the same way on the authority of Sir Edward Turner's case, although it was urged on the part of the wife that no settlement had been made on her by her husband. Creditor of cannot But, although this doctrine with respect to terms for years has been followed in several other cases, "yet it has been sometimes denied ; and even, lately, Lord Alvanley has expressed his doubt, whether the husband had any such power over his wife's trust terms for years;" admitting, however, on another occasion, that he had not considered the point sufficiently to form an opinion upon it. though in general the husband may dispose of the wife's trust term discharged of her equity, yet he cannot do so if it has been assigned in trust for her with his privity and consent; as when it has been settled for a maintenance or jointure.9 But, But whatever right the husband's assignee for valuable husband consideration of the wife's equitable choses in action may have wife's have with respect to them, it seems, that the mere creditor equitable of the husband, who has had no assignment, has no claim; interests. i 1 Vern. 7. j 1 Vern. 18. 2 Cas. in Chan. 73. 1 See note 1. to Sir Edward Tur ner's case, 1 Raithby's Vern. 7. m See note 2. to Sir E. Turner's case, 1 Raithby's Vern. 7. n Macauley v. Philips, 4 Ves. 19. o Franco v. Franco, 4 Ves. 528. p Sir Edward Turner's case, 1 Vern. 7. Draper's case, 2 Freem. 29. q Bullock v. Knight, Chan. Cas. 266, Creditor of wife's for, where a creditor filed a bill against the trustee of a bond which had been executed as a security for part of the wife's fortune, praying that he might be paid the amount of his demand out of it, Lord Nottingham dismissed the bill. And husband where the husband's creditor happens to be the trustee of being trusthe wife's equitable interests, or in any other way to have tee of the the legal estate in them, such creditor will not be permitted equit to set off the debt due to him by the husband against the interest, wife's claim to a provision, if she have filed a bill to enforce mitted to it." Nor, where the wife is entitled to a share of an intes- debt tate's personal estate, as one of his next of kin, can the against administrator set off against her claim a debt due by her husband to the intestate. not per set off the wife's equity. Administrator can not set off debt of husband to intestate against wife's claim to a provision out of her share of intestate's property, as one of next of kin. Executor can set off legacy left rupt's wife, debt.due by him, making provision for her out But, in Ex parte O'Ferrall and Others," the executors of Contra. a person who had bequeathed 1000l. to the wife of the bankrupt, were allowed to set off a moiety of the legacy part of against a debt due by the bankrupt to the testator, the other by testator moiety being ordered to be settled on the wife for life, with to bankremainder to the issue of the marriage. The only diffe- against rence between this case and Carr v. Taylor, is this, that the set-off was allowed in the one case, and not in the other; but, in both cases, the wife was allowed her equity out of the fund, in the one against the assignees, and in the other against the executor. And thus it appears, that, so long as the Court has the direction or control of the fund out of which the equity of the wife is to be served, her claim cannot be defeated by any management of the husband, as by assignment without, or for valuable consideration; and that his creditors will be postponed to her, even when they have the advantage of possessing the legal estate, in the interests out of which they seek to raise the amount of their demands. r Mason v. Masters, cited by Lord Northington in Forbes v. Phipps, 1 Eden's Cases, 506. s Lady Elibank v. Montolieu, 5 Ves. 737. t Carr v. Taylor, 10 Ves. 574. of remain der. 510 CHAP. V. · OF THE SETTLEMENT BY WHICH THE WIFE MAY BE BARRED OF It thus appears, that neither the general nor the particular assignment of the wife's equitable choses in action precludes her claim to a provision out of them. However, there are acts by which a married woman may be barred of this right to a provision, and by which her equitable property may be reduced into possession by her husband, and may pass to his assignees, whether general or particular, free and discharged from any claim of this kind. And this may happen when her husband has made a settlement upon her before her marriage, because, by such an act, he may have made himself the purchaser of her entire fortune, by which means he will be permitted to take that part of it which is of an equitable quality, without having any terms imposed Wife bar upon him. And this effect will be produced, first, by a setred of her tlement adequate to the wife's entire fortune; secondly, by equity by adequate a settlement expressed to be in consideration of that fortune. Wherever the settlement is equivalent to the wife's marriage. fortune, it will be presumed to be the intention, that the husband should have it," although there be no express agreement between the parties that it should be so. Indeed, Lord Hardwicke seems to have thought, that a settlement by the husband before marriage, whether adequate or not, would amount to the purchase of the entire of the wife's portion; and that the question of inadequacy could never arise, except upon cases of voluntary settlements after marriage. But the rule is now settled, that a settlement cannot be the settlement before a Blois v. Hereford, 2 Vern. 501. 2 Freem. 281. b Lannoy v. Duke of Athol, 2 Atk. 448. ment not chase of the wife's so express clearly ap purchase of the entire of the wife's portion, unless it be ex- A settlepressed to be in consideration of it, or such an intention the purappear from the contents and import of the instrument, as clearly as if it were expressed in terms. And the adequacy portion, of the settlement is a circumstance from which an intention unless it be will be inferred, that the husband should be the purchaser ed, or of the fortune. It is evident, indeed, that a mere settlement before marriage will not be considered to entitle the hus- be so. band to the entire of his wife's fortune, and that a question may arise as to the adequacy of such provision, because it is the present practice, where there has been an accession of fortune to the wife during the coverture, to inquire whether the settlement on the marriage be equivalent, and, if it be not, to order that the husband shall make a further settlement.d pear to quate settlement by the husband, makes him chaser of of the wife's for The case of Blois v. Lady Hereford, proves that an An adeadequate settlement makes the husband the purchaser of his wife's entire fortune. In this case there was no mention made in the marriage articles, nor in the settlement of 1300l. due to Lady Hereford upon a mortgage; and the the purquestion was, whether this sum survived to the defendant; the entire and it was held that it did not, the Lord Keeper laying down the rule to be, that "in all cases where the settle- tune. ment was equivalent, it shall be intended that the husband was to have the portion, for the wife should not have her jointure and her fortune both." This, though a case upon the wife's right of survivorship, is also an authority upon the wife's equity, for if Lady Hereford had claimed a provision out of this 13007. during her husband's life, it is evident, it would have been held that she was not entitled to it, as her husband had purchased the mortgage money by the settlement. Indeed, Mr. Cox, in his note to the case of Lord Carteret v. Paschal, states the doctrine on this subject much more Wife bar to be in considera tion of wife's por tion at the time, and generally than the cases seem to warrant, for he says, "it is to be observed, that in all cases, where a husband makes a settlement of his own estate on his wife, in consideration of her fortune, the wife's portion, though consisting of choses in action, and though there be no particular agreement for that purpose, is looked on as purchased by him, and will go to his executors." But the rule which Mr. Raithby extracts from the cases is this ; "that choses in action, though there be a settlement, shall not pass to the husband as a purchaser, unless there be a special agreement, except so far as the settlement be equivalent to the portion." And this seems to be the true result of the authorities. The husband may also make himself the purchaser of red of her equity by the entire of his wife's choses in action by a settlement in settlement, which an agreement to that effect is expressed. As, if it is expressed declared to be in consideration of such portion as the intended wife is entitled to at the time of the marriage, or may be entitled to during it, the husband is considered as the purchaser of all her choses in action, so that if there be any accession to her fortune during the coverture, the wife will not be entitled to an additional provision out of any part of it. And even an inadequate settlement will entitle the husband to the entire of his wife's choses in action, if the instrument expresses such to be the agreement of the equity, if parties.j of her future for tune, Inade quate settlement will bar wife's expressed to be the purchase of her entire fortune. Settlement in consideration of part of wife's for If, however, the settlement should be expressed to be in consideration of a part only of the wife's portion, the construction of it will be, that it is a purchase of that part only, tune, does and the remainder, if it consist of equitable choses in action, not bar her will be liable to her equity, during the husband's life; and, if he die without having reduced that remainder into equity out of the re mainder. g In his note to Blois v. Lady Hereford, 2 Vern. 501. h Druce v. Dennison, 6 Ves. 395. Carr v. Taylor, 10 Ves. 579. i Garforth v. Bradley, 2 Ves. sen. 677. j Adams v. Cole, Forest, 168. k Burdon v. Dean, 2 Ves. jun. 609. |