tate given to her separate use; and this she may do without the intervention of trustees, for the power is *171 incident to such an ownership. (a) It has been held, even at law, in this country, (b) that the wife may, by the permission of her husband, make a disposition in the nature of a will, or personal property, placed in the hands of trustees, for her separate use, by her husband, or by a stranger, and either before or after marriage.1 If a feme sole makes a will, and afterwards marries, the subsequent marriage is a revocation in law of the will. The reason given is, that it is not in the nature of a will to be absolute, and the marriage is deemed equivalent to a countermand of the will, and especially as it is not in the power of the wife after marriage, either to revoke or continue the will, inasmuch as she is presumed to be under the restraint of her husband. (c) But it is equally clear, that where an estate is limited to uses, and a power is given to a feme sole, before marriage, to declare those uses, such limitation of uses may take effect; and though a married woman cannot be said. strictly to make a will, yet she may devise, by way of execution of a power, which is rather an appointment than a will; and whoever takes under the will, takes by virtue of the execution of the power. (d)2 Thus, in the case of Bradish v. Gibbs, (e) it was held that a feme covert might exe- * 172

(a) Peacock v. Monk, 2 Vesey, 190. Rich v. Cockell, 6 Vesey, 369. West, 3 Randolph's Rep. 373. Holman v. Perry, 4 Metcalf's Rep. 492. (b) Emery v. Neighbour, 2 Halsted's Rep. 142.

West v

(c) Forse & Hembling's case, 4 Co. 60, b. 2 P. Wms. 624. 2 Term Rep. 695,

S. P.

(d) She may, under a power of appointment over personalty in a marriage settlement, appoint by deed in favor of her husband; and if it appear that she did it freely and understandingly, equity will enforce it. Chesslyn v. Smith, 8 Vesey, 183. Whitall v. Clark, 2 Edwards's V. C. Rep. 149.

(e) 3 Johns. Ch. Rep. 523. By the New York Revised Statutes, vol. i. pp. 732–

1 Cutter v. Butler, 5 Fost. (N. H.) 343.

2 Such a power of appointment is well executed, though it be exercised by means of an instrument which purports to be a will; and though it also assume to dispose of property not embraced within the power. Heath v. Withington, 6 Cush. 497. In the matter of Stewart, 11 Paige's R. 398. In this case, the power was exercised by a resident of Ohio over lands situated in New York.

An antenuptial contract made in one country, may operate as a grant of real estate situated in another. De Barante v. Gott, 6 Barb. S. C. Rep. 492.

cute by will, in favor of her husband, a power, given or reserved to her while sole, over her real estate. In that case,

the wife before marriage entered into an agreement with her intended husband, that she should have power, during the coverture, to dispose of her real estate by will, and she afterwards, during coverture, devised the whole of her estate to her husband; and this was considered a valid disposition of her estate in equity, and binding on her heirs at law. The point in that case was, whether a mere agreement entered into before marriage between the wife and her intended husband, that she should have power to dispose of her real estate during coverture, would enable her to do it, without previously to the marriage vesting the real estate in trustees, in trust for such persons as she should by deed or will appoint; and it was ruled not to be necessary; and the doctrine has received the approbation of the Supreme Court of Pennsylvania. (a) Equity will carry into effect the will of a feme covert, disposing of her real estate in favor of her husband, or other persons than her heirs at law, provided the will be in pursuance of a power reserved to her in and by the antenuptial agreement with her husband.1

(5.) Marriage settlements.

With respect to antenuptial agreements, equity will grant its

737, sec. 80, 87, a general and beneficial power may be granted to a married woman, to dispose during the marriage, and without the concurrence of her husband, of lands conveyed or devised to her in fee; or a special power of the like kind, in respect to any estate less than a fee, belonging to her, in the lands to which the power relates. She may, under the power, execute a mortgage; and, generally, she may execute a power during coverture, by grant or devise, according to the terms of it; and if she executes a power by grant, the concurrence of her husband as a party is not requisite, but she must acknowledge, on a private examination, the execution of the power. And if a married woman be entitled to an estate in fee, she may, by virtue of a power, create any estate which she might create if unmarried; but she cannot exercise any power during her infancy, nor if, by the terms of the power, its execution by her during marriage be expressly or impliedly prohibited. Ibid. sec. 90, 110, 111, 117, 130.2

(a) 10 Serg. & Rawle, 447.

1 In Massachusetts, a married woman may dispose of her separate property by will, but it shall not operate to deprive her husband of his rights as tenant by the courtesy; and she shall not bequeathe away from him more than half of her personal property, without his written consent. Mass. Laws, 1855, c. 304.

2 Wright v. Tallmadge, 15 N. Y. (1 Smith,) 307.

aid, and enforce a specific performance of them, provided the agreement be fair and valid, and the intention of the parties consistent with the principles and the policy of the law.1 A voluntary deed is made good by a subsequent marriage. (a) Equity will execute covenants in marriage articles at the instance of any person who is within the influence of the marriage consideration, and in favor of collateral relations, as all such persons rest their claims on the ground of valuable

2

consideration. (b) The husband and wife, and their *173 issue, are all of them considered as within that influence, and at the instance of any of them, equity will enforce a specific performance of the articles. (c)

Settlements after marriage, if made in pursuance of an agreement in writing entered into prior to the marriage, are valid, both against creditors and purchasers.3

The marriage is itself

(a) See infra, vol. iv. 463.

(b) Pulvertoft v. Pulvertoft, 18 Vesey, 92.

(c) Osgood v. Strode, 2 P. Wms. 255. Bradish v. Gibbs, 3 Johns. Ch. Rep. 550. But if the settlement be made through the instrumentality of a party whose concurrence is necessary to the validity of the settlement, such person is held not to be a mere volunteer, but falls within the range of the consideration of the agreement. Neves v. Scott, U. S. C. C. for Georgia, Law Reporter, Boston, for June, 1846, No. 9, p. 67. An antenuptial settlement, founded on a valuable consideration, such, for instance, as marriage, cannot be affected by fraud in the settler, if the other party be innocent. Magniac v. Thompson, 7 Peters's U. S. Rep. 348. In North and South Carolina and Tennessee, the registration of marriage settlements and contracts is required by statute, in order to render them valid as a lien on the property of the settler as against creditors. 2 Dev. & Battle, Eq. 46. 1 Rev. Stat. (N. C.) 1837, p. 233. Statute of Tennessee, 1831.*

1 An expectation as devisee of one yet living, may be settled on marriage. In re Wilson's Estate, 2 Barr's R. 325. Marriage articles entered into by a wife, when a minor, may be ratified by her and her successors in estate. Whichcote v. Lyle, 28 Penn. State R. 73. 2 The rule, in a late case, was stated to be, that, if from the circumstances or the instrument it appears to have been intended that the collateral relatives, in a given event, should take the estate, and there be a proper limitation to that effect, a court of equity will enforce the trust for their benefit. Neves v. Scott, 9 How. U. S. 196, 210. Eaton v. Tillinghast, 4 R. I. 276.

8 A husband, having sold the wife's lands under an agreement to purchase lands of equal value for her benefit, and having accordingly made such purchase, and caused the conveyance to be made to his wife: held, that these lands were not subject to his debts contracted subsequently to his payment for the lands. Barnett v. Goings, 8 Blackford's R. 284.

4 This is also the law in Georgia. Reinhart v. Miller, 22 Geo. 402.

a valuable consideration for the agreement, and sufficient to give validity to the settlement. This was so decided in the case of Reade v. Livingston; (a) and it was there held, that voluntary settlements after marriage, upon the wife or children and without any valid agreement previous to the marriage to support them, were void as against creditors existing when the settlement was made. (b)1 But if the person be not indebted at the time, then it is settled that the post-nuptial voluntary settlement upon the wife or children, if made without any fraudulent intent, is valid against subsequent creditors. This was not only the doctrine in Reade v. Livingston, and deduced from the English authorities, but it has since received the sanction of the Supreme Court of the United States, in the case of Sexton v. Wheaton. (c)2

A settlement after marriage may be good, if made upon a valuable consideration. Thus, if the husband makes a settlement upon the wife, in consideration of receiving from the trustees of the wife, possession of her equitable property, that will be a sufficient consideration to give validity to the settlement,

(a) 3 Johns. Ch. Rep. 481. Thomson v. Dougherty, 12 Serg. & Rawle, 448, and Magniac v. Thompson, 1 Baldwin's C. C. U. S. Rep. 344. Duffy v. The Ins. Company, 8 Watts & Serg. 413, S. P.

(b) A post-nuptial settlement, founded on a parol agreement before marriage, was good against creditors prior to the statute of frauds, and the marriage was the valuable consideration which sustained it. Griffin v. Stanhope, Cro. J. 454. Ralph Bovy's case, 1 Vent. 194. Lavender v. Blackstone, 2 Lev. 146. But though good at law, a specific performance would not be enforced in equity, unless the agreement was confessed by the party in his answer, or there had been a part performance. Sugden on Vendors, 107, 108. 2 Story on Eq. Jur. 62. Nor, of course, will equity enforce it since the statute, though the marriage takes place in pursuance of it, unless in cases of fraud. Montacute v. Maxwell, 1 P. Wms. 618. S. C. Str. 236. There must be some evidence in writing of the previous parol promise before marriage. It is doubtful whether a recital in a post-nuptial settlement of a previous parol agreement before marriage, be sufficient to take the case out of the statute. It may be sufficient as against parties, and not as against creditors. See the cases of Beaumont v. Thorpe, 1 Vesey, 27; Dundas v. Dutens, 1 Vesey, Jr. 199; 2 Cox, 235; Reade v. Livingston, 3 Johns. Ch. 481. And see the American Law Magazine for July, 1843, art. 2, (vol. i. p. 302,) where the subject is critically and learnedly discussed. (c) 8 Wheaton, 229. Picquet v. Swan, 4 Mason's Rep. 443, S. P.

1 Wray's Trusts, 15 E. L. & Eq. 265. Borst v. Corey, 16 Barb. 136. Maryl. 66. Kinnard v. Daniel, 13 B. Mon. 496.

2 Jewell v. Porter, 11 Foster, (N. H.) 34.

Albert v. Winn, 5

if it was a case in which a court of equity would have directed a settlement out of the equitable estate itself, in case the husband had sought the aid of the court, in order to get * possession of it. (a) The settlement made after mar- *174 riage between the husband and wife may be good, provided the settler has received a fair and reasonable consideration in value for the thing settled, so as to repel the presumption of fraud. It is a sufficient consideration to support such a settlement, that the wife relinquishes her own estate, or agrees to make a charge upon it for the benefit of her husband, or even if she agrees to part with a contingent interest. (b)1 But the amount of the consideration must be such as to bear a reasonable proportion to the value of the thing settled; and, when valid, these post-nuptial settlements will prevail against existing creditors and subsequent purchasers. (c) A settlement upon a meritorious consideration, or one not strictly valuable, but founded on some moral consideration, as gratitude, benevolence, or charity, will be good against the settler and his heirs; but whether it would be good as against creditors and purchasers, does not seem to be entirely settled, though the weight of opinion and the policy of the law would rather seem to be against their validity in such a case.2

If the wife, previous to marriage, makes a settlement of either her real or personal estate, it is a settlement in derogation of the marital rights, and it will depend upon circumstances,

(a) Moore v. Rycault, Prec. in Ch. 22. Brown v. Jones, 1 Atk. Rep. 190. Middlecome v. Marlow, 2 Atk. Rep. 519. Picquet v. Swan, 4 Mason's Rep. 443.

(b) Ward v. Shallett, 2 Vesey, 16.

(c) Lady Arundell v. Phipps, 10 Vesey, 139. Bullard v. Briggs, 7 Pick. Rep.

533.

1 A wife's release of dower, in a conveyance of her husband's real estate, is a valuable consideration, and money paid for it may be secured to her through a trustee. Hale v. Plummer, 6 Ind. 121. Andrews v. Andrews, 28 Ala. 432. Although a deed from a husband to his wife is void in law, such a grant will be upheld in equity, where the wife, in good faith and for a valuable consideration paid out of her separate estate, purchased the land conveyed to her. Simmons v. McElwain, 26 Barb. (N. Y.) 420.

2 It was held, in Wells v. Treadwell, 28 Miss. (6 Cush.) 717, that a deed of gift directly from a husband to a wife, where there is no ground to suspect fraud, and it only amounts to a reasonable provision for the wife, is valid in equity against the claims of the husband or his representatives. And see Riley v. Riley, 25 Conn. 154.