madhouse, and Lord Hardwicke, in again dealing with the case, said, Nothing appears to show that the husband has rendered himself incapable of demanding the return of his wife; and as she appears unreasonably averse to return, I cannot make a decree for the continuance of the separate maintenance. As for the arrears, let them be paid to her; because some things have happened which are an excuse for Lady Head's not returning till this judicial offer of receiving her has been made by the answer of her husband."

WIFE'S CLAIM TO A SETTLEMENT.

COMPULSORY SETTLEMENTS.

2352. Equity to Settlement.-"The asperity of the law," as it has been sometimes called, is mitigated somewhat by settlements, and particularly by what is called "the wife's equity to a settlement," in reference to which Lord Cottenham said, "upon a careful examination of the authorities, he had not found the time in which the court did not exercise this jurisdiction in favour of the wife."

PROCEEDINGS.

2353. In Chancery.-If the wife possessed property absolutely in her own right before marriage, and no settlement has already been made, the law empowers her to take proceedings before a Master in Chancery to compel her husband to make a settlement upon her in proportion to her property.

NO LIMITATION OF TIME.

2354. A wife's proceedings to obtain a settlement, may be taken any time, however long or short, after her marriage; but,

2355. Risks of Delay.-When a wife has occasion to proceed for a settlement, she should do so without delay, before the husband has had time to dispose of the property, if personalty, or to persuade her to alienate it (2240), if land; for,

2356. May be too Late.-If a wife waits till her property, and that of her husband (if he has any), is all gone, her efforts to obtain a settlement must be futile.

PROPORTIONATE AMOUNT.

2357. The proportion of the wife's property which may be settled upon her at her own suit is not subject to any imperative rule.

2338. One-Half.—Usually one-half is considered the just proportion, but that depends entirely upon the discretion of the Court, according to all the circumstances.

2359. Three-Fourths. In a case where the wife's action was taken in consequence of the husband unwarrantably separating from her, the Court decreed her three-fourths.

2360. The Whole. In a case where the husband had become insolvent, the whole of the original property of the wife was recovered and settled upon her.

AS AGAINST CREDITORS.

2361. In another case, where the husband became insolvent, a fund in court of £1000 belonging to the wife was ordered to be appropriated thus:-£600 for the wife and children and £400 for the creditors.

IN BANKRUPTCY.

2362. In a very remarkable case, where a husband had had large advances made to him by his wife's father, and had had the benefit of a provision made for his wife by her father's will, and afterwards became bankrupt, and the wife had no prospect of provision except the income of a fund under her uncle's will, it was decided by the Court that the whole of that income should be settled upon her without power of anticipation. The vice-chancellor said, in making this decree, "If there be no precedent for this, I will make one;' and

2363. In All Cases.-When a husband becomes bankrupt, and his wife has a just claim to a settlement, it is decided that his trustees must allow the equity, if demanded.

FAILING HEALTH.

2364. In another remarkable case, where there were no children of the marriage, the wife was in her sixtieth year, and had voluntarily lived apart from her husband, without any imputation of incontinence, alleging only "unhappy differences and incompatibility of temper and habits." She had in the state of separation meritoriously supported herself by keeping a school, without the aid of her husband. Her equity to a settlement" was afterwards allowed on the ground that her health had failed her, that the number of her pupils had consequently decreased, and that she had

S

therefore no longer the means of livelihood. The Court effected a settlement for her of one-half of certain stock which had come into the hands of her husband by means of her right thereto.

PECULIAR CASE.

2365. The last named case is a peculiar one, and cannot be taken as a criterion; for, as a rule,

INCOMPATIBILITY OF TEMPER.

2366. It not to be assumed that a wife who leaves her husband on the frivolous ground of "incompatibility of temper and habits " is entitled as matter of right to claim the benefit of the equity; for that, in most cases, such a separation would not be deemed sufficient cause; because,

SUFFICIENT GROUND.

2367. A wife who claims "equity to a settlement" must show sufficient ground for doing so.

2368. Adequate Maintenance.-The allowance of the equity by the Court will, in general, turn upon the fact whether the husband is or is not adequately maintaining the wife at the time of her demand.

IN CHANCERY.

2369. In a case where the husband had married a ward in Chancery without the consent of the Court, and had been consequently imprisoned for contempt, the Court liberated him only on an undertaking to make a specific settlement.

2370. Waiver Refused.-In the last case named, the wife afterwards desired to waive her claim to the settlement, but the Court would not sanction or allow her to do so. Notwithstanding,

as a general rule,

2371. A wife may waive her claim to a settlement, after having made it, so far as she is concerned; but,

2372. Children's Interest.—If the settlement which she has claimed is in the interest of her children then living, she cannot waive a claim once made, for it has been laid down that "The wife may give up her own interest, but no one can consent for the children." Thus,

2373. Joint Interests.-If a wife, who claims equity of settlement, has children, the settlement accorded by the Court is invariably made so as to secure the interests of the children also; and

2374. Surviving Right of Children.-If a decree or order be obtained, in the wife's lifetime, to lay proposals before the Master

for a settlement, and the wife at that stage dies, the children will have acquired a right to prosecute their claim.

SETTLEMENTS IN GENERAL.

2375. With regard to settlements in general, further particulars may be sought for under the head of "Settlements."

WIDOW'S LIABILITIES AND RIGHTS.

HUSBAND'S FUNERAL.

2376. It seems almost incredible that the question should have arisen in the Courts, whether a widow is bound to incur the expense of burying her husband, but there are sometimes family complications which force the question, and the Courts have had to decide it

several times.

2377. Not Bound.—As a general rule, it appears that the widow is not bound to incur the expense of her husband's funeral, which properly falls on the husband's heir or representative; but,

2378. Liable for Orders Given.-A widow who enters into a contract, written or verbal, before witnesses, to pay for her husband's funeral, may be legally compelled to pay the person with whom she contracts; her remedy, if any, being against her husband's heirs or administrators; and

2379 Widows in Minority.-Though a widow may be a minor, she is liable to pay for her husband's funeral if she gives instructions

for it.

REVIVAL OF DEBTS.

2380. A woman married prior to the 9th of August, 1870, who becomes a widow in less than six years after her marriage, simultaneously becomes liable for all debts which she owed before even though she may have made over, at her marriage, all her property to her husband, and though it may have been all disposed of by him, other than in payment of said debts.

marriage,

ACTIONS.

2381. Personal Property.-Actions, and causes of actions, which arise with a husband in respect of his wife's property, may be continued and proceeded upon against the widow, so far-but only so far-as such property is concerned.

2382. Personal Debts.—Actions for a wife's personal debts, commenced against a husband, are stayed by his death, and cannot be resumed against his widow; hence,

2383. Joint Actions.-All actions for recovery of a wife's personal debts should be against both husband and wife, so that, should the husband die before judgment be obtained, the widow keeps the action alive as joint defendant.

DISPOSAL OF PERSONALTY.

2384. Effect of a Will.-When a husband dies, leaving a will, that will is generally paramount, as against the widow; but, 2385. Reservation to Widows.-A husband cannot legally dispose of by will any portion of his wife's settlement;

2386. Nor her jointure ;

2387. Nor her real property (2420 and 2427); 2388. Nor her paraphernalia (2397).

INTESTACY.

2389. Widow Administratrix.-When a husband dies intestate, the widow is usually appointed his sole administratrix, unless she refuses the office; but,

2390. In some extreme cases of unfitness, administration may be refused to a widow.

WIDOW'S RIGHTS.

2391. Statute of Distributions.—A widow's rights in her late husband's personalty are governed by the Statute of Distributions; thus, 2392. One-Third, when Children.-When a husband dies intestate (a), leaving a widow and child or children, or representatives by direct descent of such child or children, his widow is entitled to one-third of his whole personal property.

2393. One-Half, when No Children.-A widow only, without children, is entitled at her husband's death to half his personalty.

2394. The Crown.-When a husband dies intestate, leaving a widow only, and no next of kin (illegitimate children being excluded), the law is that one-half of the personalty shall go to the crown and the remainder to the widow.

CUSTOMS OF LONDON AND YORK.

2395. According to the customs of the city of London and the province of York (which in regard to widows are nearly the same), if a freeman of London or an inhabitant of the province of York, having a wife and children, die intestate, possessed of personal

(a) See "Intestacy."