a special agent for the other. The wife can dispose of her own interest in property owned by them jointly, and her husband's interest on the theory of agency; and the same line of remark applies to the husband. This would practically result in a partnership if they bought and sold merchandise with a view to sharing the profits. The doubt accordingly seems to be unfounded, and the husband and wife may be partners both between themselves and as to third persons. A statute quite as sweeping and comprehensive was passed in England in 1882; 45 & 46 Vict. c. 75. This is a clearly drawn and well guarded act. It declares her contract to be binding on her "separate property," and includes in that expression all that she owns at the time or may subsequently acquire. SECTION IV. The view taken by courts of equity of the wife's "separate estate," and the relation to this of recent legislation. Courts of equity at an early day established two trusts in favor of married women which gave her a power of control over property which she did not possess without them. One was called the "trust for separate use," and the other, the "pin money trust. By means of these she could hold property independently of her husband or dispose of it and manage it in direct contravention to the rules of the common law. It has been said that the court by this means clearly violated the rules of property as between husband and wife, but that the jurisdiction thus exercised accorded with popular feeling, and prevailed.1 This doctrine was first established in favor of a wife who was living apart from her husband by a deed of separation, or in a case where he was a spendthrift.2 At a later period the principle was extended to other cases. A Separate Use Trust may be attached in equity to both real and personal property. It is of more importance to the wife in personal than in real estate, since in the former the title would vest absolutely in the husband if there were no trust, while in the latter he would have at most but a life estate. 1 Spence's Equity Jur., 596; Adams on Equity, 43. The trust for "separate use" is not to be confounded with the wife's separate property, which is not placed under such a trust. should be at her disposing." 21 Jac. I. Another case in the same volume is Georges v. Chancie, Id. p. 97. "A feme covert being separated, having an allowance of two hundred pounds, she improved it and disposed of it by her will.' 15 Car. I. There is a number of cases in this volume, pp. 93-96, in which the wife sues without her husband, and in the name of a next friend, and sues the husband himself. 2 Sanky v. Golding, Cary's R. 124, 21st year of Queen Elizabeth; Fleshward v. Jackson, Tothill's Rep. 94. The case is short, and is here transcribed: "Money given to a feme covert for her maintenance. Because her husband is an unthrift, the husband pretends the money to be his; but the court ordered that the money Thus if a wife should acquire land by descent, she would own it (subject to her husband's life estate), but there would be no trust. More than this, there might even be a trust estate vested in the wife, without being a trust for her "separate use." This latter trust is created by an agreement, or perhaps by a will, in which the intention is sufficiently disclosed. This leads to the inquiry, how the "separate use" trust may be created. Some usual forms will now be stated. (1) By antenuptial settlement. Such an agreement made before marriage and founded upon it, whether made by the proposed husband or some third person, is based upon a valuable consideration. The wife, acting in good faith, may hold the property as against the claims of the settlor's creditors, unless they have interests or liens in and upon the property itself.1 (2) Postnuptial settlement. Property may in like manner be settled upon the wife by the husband or others after marriage. The marriage in this case is not a valuable consideration, since it has already taken place. Some new and independent consideration is necessary to make it valid as to the creditors of the settlor. She might, for example, part with her own property on the faith of the settlement.2 An agreement to settle property, made in legal form, will in the view of the court be equivalent to an actual settlement. Such a transaction is a trust. If a conveyance be made in this way directly between the parties, though void in law, it will be upheld in equity.3 (a) A settlement made after marriage without pecuniary consideration is a mere gift. It is not binding upon existing creditors of the settlor, but this rule has been in later years relaxed so far as to uphold it, in case the settlor retains sufficient property of intrinsic value to pay his creditors. It is, however, binding on the settlor himself, including the husband. (b) It will be exempted 1 Bradish v. Gibbs, 3 Johns. Ch. 523; Magniac v. Thompson, 7 Pet. 348. The principles on which an antenuptial settlement between persons of large means should be construed, were stated in Gorham v. Fillmore, 111 N. Y. 251. (a) But see Shaffer v. Kugler, 107 Mo. 58. A husband may make a valid gift to his wife of his interest in a contract for the purchase of land. Fruhauf v. Bendheim, 127 N. Y. 587. (b) A voluntary conveyance from a 2 Livingston v. Livingston, 2 Johns. Ch. 537. 3 Simmons v. McElwain, 26 Barb. 419; Garlick v. Strong, 3 Paige, 440. 4 Reade v. Livingston, 3 Johns. Ch. 481. 5 Martin v. Martin, 1 N. Y. 473. husband to his wife is valid as against subsequent creditors, unless made with intent to defraud them, or secretly, or with a view of embarking in some new or hazardous business. Neuberger v. Keim, 134 N. Y. 35. from the claims of subsequent creditors, if made in good faith and with sufficient notoriety. (3) Settlement made with a view to separation. Such a transaction will be upheld if made with a view to immediate separation. There has been much diversity of opinion upon this point, though the rule now seems to be fully settled.1 (a) Courts of equity will grant the usual remedies resorted to for the enforcement of contracts in this class of cases, —e. g., specific performance, injunction, etc. It is, however, essential that a separation should in fact take place, and be intended to take place, otherwise the instrument will be void.2 The effect of the instrument is next to be noticed. A wife living apart from a husband under a deed of separation is no longer subject to his authority. The deed will not be invalidated by the subsequent adultery of the wife, unless she had induced her husband to execute it in contemplation of illicit intercourse, which would be a species of fraud. It is, however, avoided by the parties coming together again.5 (b) But a clause in the deed that the parties may visit each other in case of sickness will not vitiate it, though an actual visit might have that effect. The court does not authorize or sanction these agreements; at most it only tolerates them.7 Stipulations depriving the husband of the custody of the children will in general be void as opposed to public policy and the welfare of the children. If, however, it appears in the particular case that the conduct of the father is injurious to the child, this view will not be taken.o (c) An agreement contemplating a voluntary future separation is void as opposed to public policy. It is immaterial whether such an agreement is made before or after marriage.10 1 Hunt v. Hunt, 4 De G. F. & J. 221; Wilson v. Wilson, 1 H. L. Cases, 538; Pollock on Contracts, 4th ed. 265, 266; Sanders v. Rodway, 16 Beav. 207; Gibbs v. Harding, L. R. 5 Ch. App. Cas. 336. 2 Hindley v. Westmeath, 6 B. & C. 200. 3 Rex v. Mead, 2 Ld. Kenyon, 279. 4 Evans v. Carrington, 2 De G. F. & J. 481. Shelthar v. Gregory, 2 Wend. 422. (a) See, on the general subject, Clark v. Fosdick, 118 N. Y. 7; Duryea v. Bliven, 122 N. Y. 567; Galusha v. Galusha, 116 N. Y. 635. (b) Zimmer v. Settle, 124 N. Y. 37. 6 Carson v. Murray, 3 Paige, 483. 7 Rogers v. Rogers, 4 Paige, 516. 8 Vansittart v. Vansittart, 4 K. & J. 62; on appeal, 2 De G. & J. 249. 9 Swift v. Swift, 4 De G. J. & S. 710; on appeal, 11 Jur. N. s. 458. 19 H. v. W., 3 K. & J. 382; Cartwright v. Cartwright, 3 De G. M. & G. 982; Bindley v. Mulloney, L. R. 7 Eq. 343. ment that the husband shall be allowed to visit and associate with the children is a material part of the contract, and if violated by the wife, a recovery for her benefit under the contract cannot be sustained. Duryea v. Bliven, 122 N. Y. 567. A valid separation deed would naturally assume one of two forms one, an agreement with trustees to pay a sum of money to the wife. This could be enforced by the trustees in an ordinary common-law action. Another method is to place a fund under the control of the trustees, the income to be applied to the wife's maintenance. This would be a trust for her separate use, enforceable in equity.1 Reference should be made to particular clauses that are sometimes inserted in separation deeds. One is that the wife shall remain chaste and virtuous, known as the dum casta clause. Where this is wanting, the court cannot set it aside, on account of the unchastity of the wife. Should it appear on the deed that a covenant was drawn with the intent that the wife might be at liberty to commit adultery, it would be void.3 There is sometimes a clause in the deed that the wife shall not "molest" the husband. Adultery alone is not a breach of this clause, even though followed by the birth of a child. There must be some act done with an intent to annoy the husband, and it must be an act which is in fact an annoyance. It would seem that if the wife palmed off a child, known by her to be spurious, as the child of the husband, there would be evidence of molestation to go to the jury.4 A deed of this kind may be made between the parties, while an action for limited divorce is pending, to the effect that the property of the husband shall be sold, and from the net proceeds after payment of his debts, one third shall be given to the wife, and that they shall live separate. On such an agreement, she may bring an action against the husband to recover her portion of the proceeds. The consideration of such an agreement is the release of the husband's liability for the support of the wife. Such an agreement is not opposed to public policy.5 (4) Other methods than a settlement. The "separate use" trust may be created by will as well as by deed. A father may, for example, devise property to trustees to pay the income to his married daughter's separate use, and free from her husband's control. Whatever the form may be, a court of equity will carry out the intention of the creator of the trust, so far as that may be consistent with the rules of law. 1 2 Spence's Equity Jur. 526. 2 Bradley v. Bradley, L. R. 7 P. D. 237; Fearon v. Aylesford, L. R. 14 Q. B. D. 792 (Ct. of Appeal). 8 Evans v. Carrington, 2 De G. F. & J. 481; also per COTTON, L. J., in Fearon v. Aylesford, supra. Fearon v. Aylesford, supra. The case in the lower or divisional court is reported in L. R. 12 Q. B. D. 539. On pp. 540,541, will be found a form of separation deed containing the molestation clause. Pettit v. Pettit, 107 N. Y. 677. As has already been stated, it is usual, in adopting any of the various methods just described, to name a trustee to act for the wife. This, however, is not a vital point, except, perhaps, in a separation deed. It is a general rule that if no trustee be named, or if one be named and be incapable of serving, or even if none be thought of, the trust will not fail. It is a rule that "no trust shall fail for want of a trustee.' Should the husband, in opposition to this rule, assert a claim to the property, he might be declared a trustee by the court.1 A Pin Money Trust is designed to provide the wife with annual means for dress, decoration, and ornament. It is not merely an allowance for these purposes to the wife, but a trust created by a settlement. It is very common in England, "occurring almost every time that a marriage takes place among persons of large fortune." 2 It differs in its nature from the ordinary trust for the wife's separate use, in the fact that while the latter absolutely belongs to the wife, and the husband has no right to inquire into the expenditure, in the "pin money trust " (where created by the husband, at least) he has an interest that the money shall not be saved or hoarded by the wife, but shall be expended annually for his credit and pleasure, as well as for hers. Accordingly, the court will not aid the wife in collecting arrears beyond a year and a fraction, nor in case of her death will it allow her personal representatives to enforce the trust. 3 The rule will be applied though the wife be a lunatic, and so unable personally to direct her expenditure of the money. The rights of the wife over property held in trust for her separate use. - The power of a married woman to bind her separate estate grows out of the "power of disposal;" and in determining whether she has encumbered or transferred it, the inquiry will be, whether she has exercised that power. It is, therefore, not true that she is liable in all respects as if she were single. Thus she is not liable in respect to mere wrongs (or torts) committed by her, unless they are in some way connected with her estate. (a) In general, however, unless restricted by 2 Howard v. Digby, 2 Cl. & F. 634, 670; per the Lord Chancellor. 3 Howard v. Digby, supra. The Lord Chancellor said of this trust (p. 678), the husband "has a right to have the pleasure of it, to have the credit of it, to be spared the eye-sore of a wife's appearing as misbecomes her station." This case is also reported in 8 Bligh, 224. 4 Wainford v. Heyl, L. R. 20 Eq. 321. (a) This rule has been changed in New York by statute. See Laws of 1890, ch. 51. |