of the husband, at the time of making the settlement, were considerable, and the effect of the settlement, if substantiated, would be to defeat the creditors of their demands, then such settlement is void as fraudulent (9). And if the husband, though not indebted at the very time, becomes so shortly afterwards, so that it may be presumed that he made the settlement with a view to being indebted at a future time, it is equally to be considered as fraudulent (r). But, generally speaking, debts subsequently incurred will not defeat a postnuptial settlement(s); nor will any presumption of fraud against creditors arise from the debts of the husband owing at the time, if they were of inconsiderable amount (t): or if, though considerable, the payment of them is secured, as upon mortgages or by other means (u); or if the settlement itself provides for their payment (x). Besides the presumptive evidence of fraud arising from the situation of the husband, with respect to his debts, at the date of a postnuptial settlement, it has also been considered as a badge of fraud towards creditors, that the husband reserves to himself, by the provisions of it, a power of revoking the limitations of the property in favour of the wife (y). So fraud may be presumed from the fact, that notwithstanding the postnuptial settlement purports to be (t) Lush v. Wilkinson, 5 Ves. 384, in which case Lord Alvanley intimated, that the validity of the settlement will depend on the fact whether the husband was solvent at the time of making it. But it has been since held that it is not necessary to prove insolvency, though the mere existence of some debt is not sufficient: Townsend v. Westacott, 2 Beav. 340. Skarf v. Soulby, 1 Mac. & G. 364. (u) Stephens v. Olive, 2 Bro. C. C. 90. (x) George v. Milbanke, 9 Ves. 194. (y) 1 Roper, Husband and Wife, 318, Jacob's edit. an absolute transfer of personal property, the husband continues in possession of it (2), unless, indeed, his pos session be bonâ fide consistent with the nature of the settlement (a). Where the settlement after marriage by the husband upo the wife is made for a valuable consideration, the presumption of fraud fails, though the husband be indebted at the time. Thus, if the settlement be made in consideration of her father, or some other person, advancing a sum of money (b), or on occasion of an increase of fortune falling to her (c), or in consideration of her relinquishing any valuable interest, as her jointure (d), or dower (e), or property secured to her for her separate use (f); in all these cases the settle ment will be valid against creditors, unless the property settled so much exceeds the consideration in value, that from its inadequacy it appears that a fraud was intended the creditors (g). On the same ground, when (z) That the continuance in possession is a badge of fraud, see Twyne's case, 3 Co. 81, a. Edwards v. Harben, 2 T. R. 587. Bamford v. Baron, ibid. 594, in note (a). (a) Kidd v. Rawlinson, 4 Bos. & Pull. 59. Lady Arundell v. Phipps, 10 Ves. 139. Colvile v. Parker, Cro. Jac. 158. See Eastwood v. Brown, Ryan & M. 312. Martindale v. Booth, 3 B. & Adol. 498. 1 Smith's Leading Cases, p. 9 et seq. (b) Colvile v. Parker, Cro. Jac. 158. Ramsden v. Hylton, 2 Ves. Sen, 308, in Lord Hardwicke's judgment. Brown v. Jones, 1 Atk. 190. Wheeler v. Caryl, 1 Ambl. 121. (c) 1 Roper, Husband and Wife, 323, 2nd edition. The Court of Chancery will order an additional settlement to be made on the wife on an increase of fortune falling to her, which will bind both the cre a postnuptial settlement is ditors and purchasers of the hus band: Ibid. (d) Cottle v. Fripp, 2 Vern. 22, Scot v. Bell, 2 Lev. 70. (e) Per Curiam in Lavender (. Blackstone, 2 Lev. 147. See also Hewison v. Negus, 16 Beav. 598, 598, by Lord Langdale. (f) Lady Arundell v. Phipps, 10 Ves. 139. (9) Ward v. Shallet, 2 Ves. Sen. 16. Dewey v. Bayntum, 6 East, 257. What is a reasonable proportion or value between the thing given or paid, and that settled in consideration of it by the husband, is a calculation and result dependent upon each case in connec tion with collateral circumstances: The question is incapable of a ge neral definite answer; and when the Court is unable to draw the conclusion, the fact must be ascer tained by a jury: 1 Roper, Husband and Wife, 327, 2nd edit. made in pursuance of a written agreement before marriage, it is valid against creditors: for the contract of marriage is a valuable consideration, and establishes the settlement against every one (h); but whether, if the agreement before marriage be verbal only, and the settlement after marriage be in pursuance of it, such agreement will support the settlement against creditors, appears to be undecided (i). When a settlement is made after marriage, and there being creditors at the time, it is on that account declared fraudulent, the property so settled becomes part of the assets, and all subsequent creditors are let in to partake of it (j). And it should seem that the subsequent creditors may assert their rights as plaintiffs (k); at all events, if any debt which was due at the time of the execution of the deed, still remains unsatisfied (1). Besides the means already described of the acquirement of separate property, by a wife, she may also do so by carrying on trade apart from her husband, on her separate account, either in consequence of an express agreement between her and her husband before marriage, or from his permission after marriage. There is an important distinction, with respect to the estate of the executor of the husband, between the wife's right to property acquired in the two cases. When the agreement is made previously to marriage, since the consideration is valuable, the transaction will not only be obligatory upon the husband and his executors, but also binding upon his creditors; when the agreement originates during the marriage, it will be void against his creditors, but good against himself (m). (h) 1 Roper, 306, 2nd edit. (i) Ibid. See also 1 Evans' Stat. 387. (j) Walker v. Furrowes, 1 Atk. 94, by Lord Hardwicke. Taylor v. Jones, 2 Atk. 600. Montague v. Sandwich, 12 Ves. 156, 2nd edit. note (52), to Kidney v. Coussmaker. (k) In Lush v. Wilkinson, 5 Ves. 387, Lord Alvanley said, it was very extraordinary for a subse VOL. I. quent creditor to come with a fish- (1) Jenkyn v. Vaughan, H. T. 109. (m) 2 Rop. 165, 2nd edition. X X Separate property acquired by wife's sepa rate trading. Savings, &c., from wife's separate property: gifts from the husband to the wife: In the case of the wife's being a sole trader within the city of London, according to the custom there, the husband can do no act to prevent the creditors of the wife being satisfied out of her property in trade: but when these demands are satisfied, he may, at law, possess himself of the surplus of her property; for the custom does not extend to prevent him (n). But there may be a question whether a Court of Equity would not consider this surplus as the wife's separate property (o). The savings arising from the separate property of the wife will not form a part of the estate of her husband's executor: for "the sprout is to savour of the root and go the same way" (p). And so jewels, or other things, bought by the wife, with money arising out of her separate property, will not be assets liable to the husband's debts (q). But as she is entitled to deal with her separate estate as she pleases, if she directly authorises any monies which form a part of it, or the savings arising from it, to be paid to her husband, he is entitled to receive them, and she can never recall them (r). The general rule of law, derived from the unity of person, is, that gifts from the husband to the wife are void: “But in Courts of Equity," Lord Hardwicke says in Lucas v. Lucas (s), "gifts between husband and wife have often been supported, though the law does not allow the property to pass. It was so determined in the case of Mrs. Hungerford, and in Lady Cowper's case, before Sir Joseph Jekyll, where (n) Lavie v. Phillips, 3 Burr. 1785, by Yates, Justice. (o) 2 Rop. Husband and Wife, 125, 2nd edit. (p) Gore v. Knight, 2 Vern. 535. Sir Paul Neal's case, cited in Herbert v. Herbert, Prec. Chanc. 44. (q) Willson v. Pack, Prec. Chan. 297, per Lord Cowper, C. Sir Paul Neal's case, Prec. Chanc. 44: but see Lady Tyrrell's case, 1 Freem. 304. Post, p. 677, note (i). See also Carne v. Brice, 7 M. & W. 183, where it was held that clothes bought by the wife out of money settled to her separate use might be taken in execution for her husband's debts. See likewise Messenger v. Clarke, 5 Exch. 388. Bird v. Peagrum, 13 C. B. 639. But these decisions at law do not conclude the question as to the rights of the wife in equity. (r) Caton v. Rideout, 1 Mac. & G. 599. But see also Darkin v. Darkin, 17 Beav. 578. (8) 1 Atk. 271. See also 3 Atk. 393. gifts from Lord Cowper, in his lifetime, were supported, and reckoned by this Court as a part of the personal estate of Lady Cowper" (t). And his Lordship proceeded to decree, that the defendant in the cause, a widow, was entitled to 1000l., South Sea Annuities, transferred by her husband, in his lifetime, into the name of his wife, as a valid gift against the husband and his representatives (u). purchased by husband in the names of him self and wife, or in her name: So stock purchased by a man in the name of himself and stock, &c., his wife, was, on his death, held by the Vice Chancellor (Sir John Leach) to go to her as the survivor (x). And in a similar case, Lord Eldon, C., said it was prima facie a gift to her in the event of her surviving, unless evidence of contemporaneous acts, showing a contrary intention, were produced (y). So where the husband lends out money upon securities taken in the names of himself and wife, and dies, the wife is entitled by survivorship, if there are sufficient assets without this money to pay debts (2). And, generally, where a husband purchases personal property in the name of his wife, or in their joint names, it will be presumed, in a case clear of fraud, to have been intended as an advancement and provision for the wife, and on surviving her husband she will be entitled, unless he has aliened the property in his lifetime (a). But where the widow seeks to establish a gift from her husband in his lifetime, she must adduce evidence beyond (t) See also Sir Thomas Plumer's Judgment in Walter v. Hodge, 2 Swanst. 104. S. C. 1 Wils. Ch. Cas. 445. Though the property does not pass at law, yet, in equity, a husband, being the owner at law, may become a trustee for his wife; and if by clear and irrevocable acts he has made himself such trustee, the gift to his wife will be conclusive: Mews v. Mews, 15 Beav. 533, by Romilly, M. R. (u) See also Lord Hardwicke's notice of this case, in Graham v. Londonderry, 3 Atk. 393. But see likewise 2 Sm. & G. 197. (x) Lorimer v. Lorimer, MSS. Mr. Beames, n. (46), to Rider v. Kidder, 10 Ves. 367, 2nd edit. (y) Wilde v. Wilde, MS. 1 Rop. Husband and Wife, by Jacob, 54. See also Acc. Dummer v. Pitcher, 5 Sim. 35. 2 M. & K. 262. Coates v. Stevens, 1 Younge & Coll. 66. Low v. Carter, 1 Beav. 426. Vance v. Vance, 1 Beav. 605. (z) Christ's Hospital v. Budgin, 2 Vern. 683. (a) Kingdon v. Bridges, 2 Vern. 67. Glaister v. Hewer, 8 Ves. 199. what is suffiof a gift by cient evidence husband to wife. |