WIFE'S EQUITY. By this phrase is understood the equitable right of a wife to
have settled upon her and her children a suitable provision out of her
estate whenever the husband cannot obtain it, without the aid of a court of
equity. Shelf. on M. and D., 605.
2. By the marriage the husband acquires an interest in the property of
his wife in consideration of the obligation which he contracts by the
marriage, of maintaining her and their children. The common law enforces
this duty thus voluntarily assumed by him, and he can alien the property to
which he is thus entitled jure mariti, or in case of his bankruptcy or
insolvency it would vest in his assignee for the benefit of his creditors,
and the wife would be left with her children, entirely destitute,
notwithstanding her fortune may have been great. To remedy this evil, courts
of equity, in certain cases, give a provision to the wife, which is called
the wife's equity.
3. The principle upon which courts of equity act is, that he who seeks
the aid of equity must do equity, and that will be withheld until an
adequate settlement has been made. 1 P. Wms. 459, 460. See 5 My. & Cr. 105;
11 Sim. 569; 4 Hare, 6.
4. It will be proper to consider, 1. Out of what property the wife has
a right to claim her equity to a settlement. 2. Against whom she may make
such a claim. 3. Her rights. 4. The rights of her children. 5. When her
rights to a settlement will be barred.
5.-1. Where the property is equitable and not recoverable at law, it
cannot be obtained without making a settlement upon a wife and children, if
one be required by her 2 P. Wins. 639; and where, though the property be
legal in its nature, it becomes, from collateral circumstances, the subject
of a suit in equity, the wife's right to a settlement will attach. 5 My. &
Cr. 97. See 2 Ves. jun., 607, 680; 4 Bro. C. C, 338; 3 Ves. 166, 421; 9 Ves.
87; 5 Madd. R. 149; 5 Ves. 517; 13 Maine, 124 10 Ala. R. 401; 9 Watts, 90; 5
John. Ch. R. 464; 3 Cowen, 591; 6 Paige, 366; 2 Bland. 545; 2 Paige, 303.
6.-2. The wife's equity to a settlement is binding not only upon the
husband, but upon his assignee under the bankrupt or insolvent laws. 2 Atk.
420; 3 Ves. 607; 4 Bro. C. C. 138; 6 John. Ch. R. 25; 1 Paige, 620; 4 Metc.
486; 4 Gill & John. 283; 5 Monr. 338; 10 Ala. R. 401 1 Kelly, 637. And even
where the husband assigned the wife's equitable right for a valuable
consideration, the assignee was considered liable. 4 Ves. 19.
7.-3. As to the amount of the rights of the wife, the general rule is
that one half of the wife's property shall be settled upon her. 2 Atk. 423;
3 Ves. 166. But it is in the discretion of the court to give her, an
adequate settlement for herself and children. 5 John. Ch. R. 464; 6 John.
Ch. R. 25; 3 Cowen, 591; 1 Desaus. 263: 2 Bland. 545; 1 Cox, R. 153; 5 B.
Monr. 31; 3 Kelly, 193; 1 D, & W. 407; 9 Sim, 597; 1 S. & S. 250.
8.-4. Whenever the wife insists upon her equity, the right will be
extended to her children, but the right is strictly personal to the wife,
and her children cannot insist upon it after her death. 2 Eden, 337; 1 J. &
W. 472; 1 Madd. R. 467; 11 Bligh, N. S. 104; 2 John. Ch. R. 206; 3 Cowen,
591; 10 Ala. R. 401; 1 Sanf. 129.
9.-5. The wife's equity will be barred, first, by an adequate
settlement having been made upon her; 2 Ves. 675; when she lives in adultery
apart from her husband 4 Ves. 146; but a female ward of court, married
without its consent, will not be barred, although she should be living in
adultery. 1 V. & B. 302.