Baron and Feme
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 871
HIGH COURT OF CHANCERY
[57] GAP XL baron and feme. (A) What Things are vested in the Husband by the Marriage. (B) What Acts of the Wife's before Marriage shall the Husband avoid as done in Derogation of the Eights of Marriage. (C) How far the Husband shall be bound by the Wife's Acts before Marriage. (D) How far by her Acts during Coverture. (E) How far a Feme Covert shall be bound by the Acts in which she has joined with her Husband. (F) What Contracts between Husband and Wife are dissolved by the Marriage. (G) In what Cases the Husband must make a suitable Provision on his Wife, when he sues for her Fortune. (H) Suits and Proceedings by and against Husband and Wife, how to be. (I) Concerning the Wife's Pin Money and Paraphernalia. (K) Concerning Alimony and separate Maintenance. (L) What Right survives to either of them, or their Representatives, by the Dissolution of the Marriage. (A) what things are vested in the husband by the marriage. 1. A Feme Sole having assigned her Term in Trust for herself, before Marriage, the Husband alone mortgages the Term; and it was decreed, that such Mortgage was not good : and it was likewise admitted by the Court to be the constant Practice, since Queen Elizabeth's Time to set [58] aside and frustrate all Incumbrances and Acts by the Husband, with respect to the Wife's Term, in Trust for her, and that he could neither charge nor grant it. Per Finch, Ld. K., 25 Gar. 2, Doyly and Perfull, 1 Chan. Ca. 225; 2 Freem. 138 S. C. But the Law is now changed in this particular. 2. For where A. having disposed of a Term settled in Trust on his Wife by a former Husband; though it was decreed void by Finch, Ld. Chan, yet upon an Appeal to the House of Lords, the Decree was reversed. Sir Edward Turner's Case, 1 Vern. 7. 3. It came afterwards in Question, upon an Assignment made by the Husband of such a Term, whether he could dispose of it: and it being urged, that it had been lately adjudged in the House of Lords that he might, Ld. Chan., wondered at that Resolution, which he said would not amount to an Act of Parliament, so as to change the Law; but at last decreed such Disposition good, saying, There must not be one Kind of Equity above Stairs, and another here ; and thought that from henceforth it would not be sufficient to have the Husband's Consent and Privity to an Assignment of a Term in Trust for the Feme, before Marriage, unless he was likewise made a Party to the Assignment. Mich. 1681, Pit and Hunt, 1 Vern. 18. Note : It appears in Sir Edward Turner's Case [see last preceding case] to have been agreed without doubt that where a Term is assigned in Trust for a Feme with the Privity and Consent of her Husband, the Husband cannot intermeddle or dispose of it. Vide 1 Vern. 7. 4. A Term being settled in Trust on the Wife by a former Husband, the second Husband first mortgages it, and then he and the Mortgagee assign it to /. S. who brought a Bill against the Wife and her Trustees, to have the legal Estate assigned over to him; and it was held, that the Husband may as well dispose of a Term in Trust for the Wife, as if the legal Estate was in her ; and decreed accordingly, although 872 BARON AND FEME 1 EQ. CA. ABE. 59. the Husband had made no Settlement on the Wife. Trin. 1692, Tuder and Samyne, 2 Vern. 270. * 5. A. made a Settlement, whereby he created a Term for Years in Trust, to raise £400 a-piece for his two Daughters; one of them marries B., and he and his Wife brought a Bill, and had a Decree to have the £400 raised and paid ; but before it was raised B. assigns the Benefit of this Decree to one /. S. in Trust for Payment of his Debts, and made him Executor, and died, leaving his Wife and one Child unprovided; the Creditors brought a Bill to have the Benefit of the said Assignment; and though it was insisted upon, in Behalf of the Wife, that there was a Difference between a Term Trust to raise a Sum of Money for a Woman, and a Trust of the Term itself for a Woman ; yet the Master of the Eolls held, that this was a Term for Years, and not a Sum of Money, and therefore not to be distinguished from Sir Edward Turner's, and must decree it (though against his Conscience) that there may be an Uniformity of Judgments. Trin. 1703, Walter and Saunders. But for this vide Letter (L) [1 Eq. Ca. Abr. 68]. 6. If a Legacy be given to a Feme Covert, who lives separate from her Husband, and the Executor pays it to the Feme, and takes her Eeceipt for it; yet on a Bill brought by the Husband against the Executor he shall pay it over again, with Interest; for Payment to the Wife is not good. Decreed Mich. 1684, Palmer and Trevor, 1 Vern. 261. 7. A. devises the Surplus of his personal Estate to his Daughter, the Wife of B. for her separate Use, and makes her Executrix ; and Ld. Chan, seemed to be of Opinion, that, the Devise being to her, and not to Trustees, what comes to her by Law belongs to the [59] Husband ; but there was no Decree made in it. Trin. 1710, Harvey and Harvey, 2 Vern. 659. (1 Will. Rep. 125, S. C., no Decree appears to have been made.) (B) what acts of the wife's before marriage shall the husband avoid, as done in derogation of the eights of marriage. 1. A Widow makes a Deed of Settlement of her Estate, and marries a second Husband, who was not privy to such Settlement; and it appearing to the Court, that it was in confidence of her having such Estate that the Husband married her, the Court set aside the Deed as fraudulent. Howard and Hooker, 2 Chan. Rep. 81. 2. So where the intended Wife, the Day before her Marriage entered privately into a Eecognizance to her Brother, it was decreed to be delivered up, and a perpetual Injunction granted. Lance and Norman, 24 Car. 2, 2 Chan. Rep. 79. 3. So where a Conveyance was made by the Wife, before her Marriage, to Trustees, in Trust that they should permit her to receive the Eents and profits of the Estate, and act in every Thing as she, whether Sole or Covert, should appoint; the Lady being crazed in her Understanding endeavoured to run away from her Husband, and stirred up her Creditors to sue him ; and the Conveyance appearing to be without the Husband's Privity, Ld. Chan, held it to be in Derogation of the Eights of Marriage, and decreed the Possession of the Estate to the Husband, and a Conveyance from the Trustees to the Six Clerks, that it might be subject to the Order of the Court. Hil. 1686, Carlton and Earl of Dorset, 2 Vern. 17. 4. A Woman, on Agreement before Marriage with her Husband, being to have a Power to act as a Feme Sole, and the Husband dying, and she marrying again, the second Husband not being privy to the Settlement on the first Marriage ; it was decreed that the second Husband should not be bound by that Settlement made on the former Marriage. Edmonds and Dennington, a Case cited [in Carleton v. Dorset] to be decreed, 2 Vern. 17. 5. But where a Widow, before her Marriage with a second Husband, assigned over the greatest part of her Estate to Trustees, in Trust for Children by her former Husband; though it was insisted, that this was without the Privity of the Husband, and done with a Design to cheat him ; yet the Court thought that a Widow may thus provide for her Children, before she put herself under the Power of a Husband; and it being proved, that £800 was thus settled, and that the Husband had suppressed the Deed, he was decreed to pay the whole Money, without directing any Account. Mich. 1685, Hunt and Matthews, 1 Vern. 408. A Woman filed a Bill, whereby she set forth, that being entitled to an Estate for Life in divers Lands, &c., and being about to marry one Grey, she, with his Consent, and for 1EQ. CA. ABE. 60. BARON AND FEME 873 the Purpose of providing for her Children, conveyed by Indentures dated $th and Wth January 1777 her Estate to Trustees, in Trust, to pay the Rents and Profits during her Life, to such Uses as she, whether sole or covert, should appoint, and that she made an Assignment of her Personal Estate to the same Uses, that afterwards (in fact within a Week of the Date of the said Conveyance) she married the Defendant one Bowes, ivho after his Marriage by force compelled her to revoke the Uses of her former Deed. She therefore prayed that the said Deed might be established, that the Instrument of Revocation might be delivered up to be cancelled, that Bowes might be dispossessed of the Estates, and that he and his Agents might be restrained from receiving the Rents. Bowes by his Answer swore that he had no Notice of the Settlement of the 9th and 10th January, 1777, before his Marriage. He also filed a cross Bill praying that the said Settlement might be set aside as fraudulent being executed by his Wife before Marriage without his Knowledge, and in derogation of his Marital Rights ; and that the Deed of Revocation might be established. The Fact that the Deed of Revocation was extorted by Force having been established by a Verdict at Law, the only Question remaining was, whether the Wife's Settlement of 9th and 10th January 1777, should be delivered up to be cancelled according to the Prayer of Bowes's Bill. Per Buller, J., sitting for Lord Thurlow. The Cases on this Point may be divided into two Classes. 1. Those relating to Women who never married and who of course had no Children. 2. Those relating to Women who had Children by a former Husband. The Cases of the first Class decide, that if the Wife holds out that the Husband will be entitled on the Marriage to her Property the Deed is void. But they go no further. If such Deeds were universally void, the other Class of Cases could not have existed, for Children could make no Difference. If they are good in any case, to avoid them, the Party must shew to the Court that the Husband has been deceived. Mere Concealment is not enough. Again : Bowes the Plaintiff here seeks Equity, he must therefore do Equity. He demands to have this Deed set aside without offering to make any...
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