in which were held indepen

children

the child of the marriage to be entitled to an equity out of his mother's portion after her death. So Lord Chancellor King is said to have decreed in favour of the children's equity in the case of Grosvenor v. Lane. That decree has not been reported, but the same case having been afterwards before Lord Hardwicke, in a subsequent stage of it, his Lordship mentioned this decision of Lord Chancellor King, in which he had yielded to this claim, and had ordered a provision for an infant daughter (her mother having died) before he would permit the husband to take his wife's fortune. So, in Scriven v. Tapley, Sir Thomas Clarke, Mas- Instances ter of the Rolls, decreed a provision to the children after the death of their mother, although no order had been made in her lifetime for a settlement upon them. And although this decree was reversed by Lord Northington on an appeal, yet Sir Thomas Sewell, Master of the Rolls, in a short time afterwards, adopted the opinion of Sir Thomas mother's Clarke, and acted upon it; for, in Cockel v. Phipps, where equitable the bill was filed by the plaintiff, praying to be decreed after her entitled to a sum of 5007. in right of his wife, who was then death. dead; his Honour, although he held the husband to be entitled to this money, would not suffer it to be paid to him until the Master should report whether he had made any provision for the issue of his marriage with his late wife.

There is, in addition to these decisions, the weight of Sir William Grant's opinion in favour of this right in the children; for his Honour, speaking of the above cases, says, "There is, therefore, a great deal of authority in opposition to that decision by Lord Northington, in Scriven v. Tapley, all weighing strongly in favour of the right of the children claiming under a decree in favour of their mother; for if their right to come with an original demand for a settlement upon them, their mother having died without

to have an

dent equity to a provision out

interests

The equity

of the wife to compel a settlement is personal to her.

demanding any settlement, is established, à fortiori, if she has claimed, and the Court has directed a settlement, the children must be entitled.g

These are the cases in favour of the children's independent equity. On the other side, in Hearle v. Greenbank, Lord Hardwicke said, that he could find no case where the Court had refused to suffer the assignees of a bankrupt husband, after the death of his wife, to lay their hands on her fortune, without making a provision for the children. And Lord Northington made the same observation with respect to the husband himself, when he reversed Sir Thomas Clarke's decree in Scriven v. Tapley. The case there was, that the wife being entitled to a sum of money, died in the lifetime of her husband, leaving one child, who filed a bill to raise the mother's portion; and the question was, whether the husband had a right to this money without making a settlement on the children? The Lord Chancellor said, "The equity of compelling settlements first arose upon the husband's coming into this Court for assistance. It is personal to the wife, and, if carried further, would be attended with ill consequences to creditors. There is no case where the Court has refused assistance to the husband, after the death of the wife, upon the terms of his making a provision for the children.

But Lord Eldon seems to have decided this question against the original claim of the children in the case of Murray v. Lord Elibank, where his Lordship determined, that an order for a settlement on the wife and her children, constitutes a right in the children to a provision, if the wife die without any act done after the date of that order. This case was argued very much at length, and his Lordship expressed some difficulty in giving his judgment upon it. But surely there could have been no difficulty in saying, that an order for a settlement on the wife and her children, without any further proceeding, should establish

a right in the children to a provision after their mother's death, if his Lordship had been of opinion, that the children would have had such a right without any order. If the children had a right to a provision after their mother's death, without any decree or order having been pronounced for a settlement on them in her lifetime, then it would follow a fortiori, that they must have the same right, if there had been an order for a settlement in her lifetime. But it is remarkable, that Lord Eldon never once adverts, in the whole course of his judgment, to an equity in the children after their mother's death, independent of any order for a settlement on them during her life, although such a right was insisted on by their counsel; so that his Lordship may be very fairly considered as having entertained sentiments adverse to that claim.

k

after their mother's

death, to a provision

But the very point arose, and was decided by Sir Thomas No indePlymer, in the case of Lloyd v. Williams, where it was held, pendent right in the that the children have no independent substantive right, children, and that their right can be derived only from a contract or under a decree. And the value of this very able judgment is considerably enhanced by the Vice-Chancellor's patient out of her and laborious investigation of the cases on the authority of portion. which the independent right of the children was rested; for he showed distinctly from the Register's book, that two of them, which were principally relied on, namely, Grosvenor v. Lane,' and Cockel v. Phipps," are misreported, and are no way applicable to this question. It appeared, that, in the first case, the portion of the mother was, after her death, decreed to her daughter, as being entitled to it under a deed executed by her father and mother, and not on the ground that she had an independent right to do it. And in Cockel v. Phipps," where the husband filed a bill for part of his wife's fortune after her death, it was referred to the Master to inquire, whether he had made any settlement on the children, inasmuch as he had covenanted by his marriage articles to make such settlement. So that neither of

these cases is an authority upon this point; and, therefore, the only authorities remaining in support of the children's right are the cases of Wytham v. Cawthorn, and of Scriven v. Tapley, as decided by Sir Thomas Clarke, if we except the opinion intimated by Sir William Grant in Murray v. Elibank, and that, it must be observed, was given by his Honour on the supposition that Grosvenor v. Lane and Cockel v. Phipps were correctly reported.

But, without pretending to estimate the weight or value which ought to be attached to the different opinions upon this subject, it may be permitted to observe, that the wife's equity has been hitherto administered in such a way as seems to negative the idea of any right in the children after their mother's death, except as derived from her, through the medium of a decree or of a contract made in their favour in her lifetime. For the rule is established, that the wife may waive her equity in favour of her husband, and deprive herself and her children of any share in it, at any period before a proposal has been made by the husband for a settlement. How then is it possible to reconcile the notion of an equity in the children after the mother's death, not dependent upon her, while she possesses this power of barring their claim altogether, even though there should have been a decree for a settlement upon them?

However, this is a question of mere practice, depending rather on the number than on the weight of the authorities; and as the research of the Vice-Chancellor, in Lloyd v. Williams, has reduced the number of those which were supposed to be in favour of the independent right of the children, and as this decision has added one to the number of those against it, it seems it may be now safely asserted to be the law of the Court, that the children have no right to a provision out of their mother's equitable portion after her death, unless there has been a decree or an agreement to that effect in her lifetime, of which she has not relinquished the benefit.

o 2 Eq. Ab. 392.

r Lloyd v. Williams, 1 Mad. C.

p Amb. 509. 2 Eden's C. C. 337. C. 450. q 13 Ves, 7.

s 1 Mad. C. C. 450.

537

CHAP. VIII.

THE FORMS IN WHICH THE WIFE WAIVES HER

EQUITY.

waives her equity by her con

sent on

her sepa

in court.

ALTHOUGH a married woman has an undoubted right to yield her claim upon her unsettled equitable portion in favour of her husband, without receiving any equivalent for it, yet it has been deemed expedient by the Court, to interpose certain forms in the exercise of that right, to guard her against the possibility of a constrained or hasty relinquishment of her interests. And, accordingly, it is the unvary- Wife ing practice, that, whenever her consent is required to waive this equity, she must undergo an examination separate and apart from her husband, in which she is informed as to the nature and extent of the benefit she is about to rate examination surrender; and, at the same time, is apprized, that her free and voluntary consent is requisite to pass it. And, if she should evince any, the least disinclination to the transaction, or intimate that any force or threat had been employed to influence her on the occasion, the Court will refuse its assistance to the husband to reduce her portion into possession, unless he makes a settlement upon her. The act must be perfectly voluntary on her part, or the Court will not give it effect. Even where the husband is willing to make a provision for the wife out of her equitable portion, and has made a proposal to the Master for that purpose, which he has reported that he approves of, still, if the Court should deem the proposal ineligible, it is usual to examine her, to know from her if she consents. And if she will consent freely and voluntary, and if she perseveres in her consent, the Court will not prevent her, however

a Macauly v. Philips, 4 Ves. 18.