WHEN VOLUNTEERS CAPABLE OF ENFORCING THE TRUSTS SETTLEMENTS AFFECTED BY BANKRUPTCY ACT, 1883 MARRIED WOMEN SEPARATE TRADER LIABLE TO BANKRUPTCY LAW POWER OF DIVORCE COURT TO VARY SETTLEMENTS: ON DISSOLUTION OF MARRIAGE. ON DECREE OF NULLITY PAGE 152 154 157 158 159 160 160 161 163 163 164 164 THIS chapter will be divided into seven sections for convenience of reference, as follows: 1. Introductory. 2. Settlements generally: (a) Those founded on valuable consideration; (b) Voluntary settlements. 3. Covenants in settlements. 4. Construction of settlements. 5. Enforcement of settlements. 6. Rectification of settlements. 7. Revocation and setting aside of settlements. SECTION I. In the preceding chapters matters anterior to the state of Introductory. matrimony have been discussed, the requisite rites and ceremonies, what things must be done and conditions fulfilled before a valid marriage can be contracted; and in the immediately preceding chapter, the penalty for entering into a matrimonial engagement and not fulfilling it, when no lawful obstacles intervene. In this chapter the agreements which are entered into between the intended husband and wife and the other parties interested in the marriage will be considered. A marriage settlement has been described to be an instru- What is a ment executed before marriage, and wholly or partly in considera- settlement. tion of it, by which the enjoyment and devolution of real and personal estate is regulated."1 Post-nuptial settlements, or those executed by husband and wife, are also called "marriage settlements; but, as will be seen, the consideration of marriage is wanting. 1 Wat. Comp. Eq. 549. For a full disquisition on this important topic the reader is referred to Vaizey on Settlements, and Bythewood and Jarman's Conveyancing (4th edit.), vol. vi. Marriage of the parties In order to make a settlement in consideration of marriage fully operative, it is of course necessary that the intended marrithe full opera age should take place; and where the parties, after settling their necessary to tion of the settlement. Objects of a marriage settlement. Marriage formerly a con to the hus band. property on certain trusts, and executing the deed, do not marry, but show by their conduct that they consider the trusts of the deed are at an end, the contract will be rescinded, and the trusts of the settlement declared to be at an end.' Now the object of a strict settlement made on marriage, equally with that of the wider family settlement, is the preservation of property, real and personal, in a particular family, or in the new group to be formed by the union of the spouses. By it the dissipation of the property of the husband or of the wife by reckless extravagance or unfair dealing is checked and prevented, and the interests of the children, the fruit of the union, are safeguarded. Another object is the provision of a suitable maintenance for the new household during the life of the parties and of the survivor. The most important reasons (so far as this present work is concerned) for the making of marriage settlements, are the definite ascertaining of the rights of husband and wife in each other's property, to make provision for the family life, and to declare the interests of those who will be the fruit of the union, or of those who are to take in default of such issue. Marriage formerly operated at common law as a conveyance to veyance of the the husband (absolutely as regards her personalty, and for the wife's property period of coverture, or for life, as regards her realty) of all the property of the wife at the time of the marriage, and that which was subsequently acquired by her; save such as was settled to her separate use in accordance with equity doctrines. The wife had no corresponding right and advantage, though, it is true, she had a right to be dowered of her husband's lands, and to share on his intestacy in the third or half of his personal property, as the case might be; but since the Dower Act, 1834, he has been enabled to defeat and determine her right to both kinds of property by a M. W. P. Act, disposition during his life, or by will. The Married Women's interfere with Property Act, 1882,3 has wrought a considerable change in the arrangements relations of husband and wife, by making all property acquired by means of mar- her her own, and by giving her absolute control over it; and both 1882, does not carried out by riage settle. ments. these facts have a material bearing on the present subject of marriage settlements. This Act in no way affects the right and capacity of a husband or third party to settle property on the wife, 1 Essery v. Coulard, 26 Ch. D. 191; Bond v. Walford, 32 Ch. D. 238. 2 "There are three points to be looked at in a settlement-the destination of the income, the mode in which the capital is to be limited to the children, and the way in which it is to go if there are no children, who acquire an indefeasible interest in it." Per Baggallay, J. A., in Cogan v. Duffield, 2 Ch. D. 44, 49. 3 45 & 46 Vict. c. 75. nor does it prevent a wife from settling her property on marriage in any manner she may think fit. On the contrary, it provides that: "Nothing in this Act contained shall interfere with or affect any settlement, or agreement for a settlement, made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation attached or to be hereafter attached to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument. The effect of this change in the law is that a woman may, after the coming into operation of the Act alone, and without any covenant on the part of her husband, make a settlement of the real and personal property to which she is entitled at the time of her marriage, or acquired by her during coverture, as she might have settled it previously to the passing of the Act, but subject to the claims of her ante-nuptial creditors; and that any settlement existing before the Act will not be interfered with or affected. requisite as Owing to the unlimited control of the wife over her property Marriage conferred by this Act, the matrimonial rights and duties of the settlements spouses will require more than ever to be accurately ascertained, ever. defined, and set forth. Thus, the consideration of the subject is as requisite as heretofore. requisite. Every marriage settlement that is properly drawn provides for Trustees. the appointment of trustees; for without their intervention its Their interprovisions cannot be carried out with certainty, but are liable to vention still fail. If the husband and wife entitled to property settled upon their marriage obtained the legal estate and possession of it, it would be difficult to prevent their so disposing of it as to defeat the rights of their children; so also, if there were no settlement, and the husband obtained possession of his wife's property, his rights would prevail, and it would be his to alienate as he might please. The right of the wife to a share of her property under such circumstances, known as her equity to a settlement, was devised by the Court of Chancery as a protection; but it could only be exercised where the property was in the power of the court.3 It is to protect the interests of all parties, both those in esse and those yet to be born, that trustees are appointed.‘ 1 Sect. 19. 2 Where a woman married before the coming into operation of this Act (January 1, 1883) has entered into a binding covenant to settle after-acquired property, this section has much modified the full power of disposition over her property conferred by the other sections of the Act. Re Stonor's Trusts, 24 Ch. D. 195; Hancock v. Hancock, 38 Ch. D. 78. See post, Covenants to settle after-acquired property. See post, chap. xiii. 4 See Sampayo v. Gould, 12 Sim. 426. The powers of trustees are more fully treated of lower down, Part III., Guardian and Ward, chap. vi. Married women. Lunatics. Infants. Settlements by infants voidable. Consent of The Married Women's Property Act, 1882, now provides that married women may hold their property without the intervention of a trustee; but as it is possible that this provision may prove more of a snare than a protection, it is clear that the necessity for the appointment of trustees in the future still exists, if not to protect her interests, yet those of the children. 1 Who can make Marriage Settlements.-In general, all persons are competent to make binding marriage settlements, except lunatics and infants. A woman under coverture was incapacitated in most instances from making a valid settlement, without the concurrence of her husband, unless she was exercising a power given to her in that behalf, or she was dealing with her separate estate,2 but now her right to make a settlement is a necessary incident of her absolute ownership of her property. There does not appear to be any case in which the question of a marriage settlement made by a lunatic has been involved; but if ever it should come up for discussion, it may be laid down with confidence that the ordinary rules governing the contracts of lunatics will be applied, viz., that if the contract was executed by a lunatic when insane, it would be set aside; and, on the contrary, would be upheld if executed by him during a lucid interval, or while he was sane, and subsequently became afflicted with lunacy. to 3 As in another portion of this work the marriage settlements of infants will be more particularly set forth, it will here suffice say that marriage settlements executed by infants are, except under certain circumstances, voidable. It was once thought that the consent of guardians could supply and fill up the requisite not make set- authority but this is no longer the law. But a female infant, it appears, may on marriage be bound in certain respects, and in the matter of certain kinds of property; thus, it has been decided the right of dower may be barred by a proper provision of jointure made for her before marriage, and she may be barred of her share of her husband's personal estate under the Statute of Distributions, where a provision is made for her by settlement." guardians cantlements by infants binding. Petitioning infants under But infants intending to marry may apply by petition to the 18 & 19 Vict. Court of Chancery (they are not, however, thereby constituted wards of court) under the Infants' Settlement Act, 1855,7 and with the approbation of the court make binding settlements of C. 43. 1 Sect. sub-sect. I. 3 Post, Part IV., Infancy, chap. iv. 6 Drury v. Drury, 2 Ed. 39; Earl of Buckinghamshire v. Drury, 2 Ed. 60. But see remarks of Lord Herschell on this case in Seaton v. Seaton, 13 App. Cas. p. 67. 7 18 & 19 Vict. c. 43. their real and personal estate on marriage. The limitation of the ages of the applicant is for males twenty years, and for females seventeen years. This Act removes the disability of infancy only, but so far as married women are concerned, leaves untouched the disability of coverture. Where an infant ward of court married without leave and afterwards executed a post-nuptial settlement sanctioned by the court, by which she purported to settle certain reversionary property her title to which was under a will becoming operative before Malins' Act' came into force, and so not within its application, though she subsequently recognized the settlement by various acts, it was held that neither the sanction of the court nor the effect of the Infants' Settlement Act could make the settlement of the reversionary interest binding upon her; and that no acts of acquiescence and confirmation will have that effect unless they amount to an actual disposition by her of the property when discovert.2 Notwithstanding the decision of Selborne, L.C., and Fry. L.J. (Cotton, L.J., dissenting) in Sampson v. Wall, and the case of Re Phillips (An Infant), doubt has been thrown upon the question whether the Infants' Settlement Act applies to a post-nuptial settlement." The marriage settlement of an infant is not within the Infants' Relief Act, 1874.6 4 marriage set The operation of a marriage settlement when executed is to Operation of a affect all the property comprised in it or affected by its provisions, tlement. such as property to be acquired in the future, and agreed between the parties to be settled in a particular manner. All classes of property may be brought into settlement, and regulated by it in various ways, and its directions will be carried out where they do not violate legal principles. The respective rights of husband Rights of husand wife as to future property depend upon the terms of the defined. settlement; the husband did not in the past, nor will in the future, become entitled to his wife's future property because a settlement has been made on her by him, without a stipulation to that effect." 8 band and wife ment. The husband was usually deemed liable to pay the costs of the Costs of settle. marriage settlement, but the court will sometimes order the costs to be paid out of the funds of the wife where she is a ward of court.9 1 20 & 21 Vict. c. 57. 2 Seaton v. Seaton (ubi sup.), affirming S. C. Buckmaster v. Buckmaster, 35 Ch. D. 21. 7 Garforth v. Bradley, 2 Ves. Sen. 677; Carr v. Taylor, 10 Ves. 574. 8 Helps v. Clayton, 17 C. B. (N. S.) 553 De Stacpoole v. De Stacpoole, 37 Ch. D. 139. |