Opinion
04-27-1876
WHITE, by & c., v. GOULDIN'S ex'ors & als.
E. C. Moncure and A. B. Chandler, for the appellant. E. P. Chandler, Braxton and Wallace, for the appellees.
G died in 1863 in the county of C. By his will, after a number of specific devises and legacies, he directs the residue of his estate, which includes lands, to be divided into four parts, which he gives to one of his sons and three daughters, one of whom is L the wife of W; and directs his executors to sell the property. W, who then lived in C, removed, and lived in Tennessee in 1869 with his wife and seven children; and he was insolvent. In 1869 W came to C, and he and some of the other children entered into a bond with the executors to submit the matters of difference between them to arbitration, the award to be made a rule of court. W signed this bond for himself and his wife L, without authority from her. The arbitrators awarded to each of the residuary legatees $8,000, to be paid by the executors, the part of L to be paid to W; and that W and the other legatees should give bonds of indemnity. This award was entered as an order of the Circuit court of C, directing the executors to pay the $8,000 to W. Before the money was paid, creditors of W, whose debts were contracted before the death of G, instituted proceedings to subject this sum of $8,000, awarded to W, to pay their claims; and L then filed her bill against them, the executors and W, to have it settled on her. HELD: She is entitled to have the whole, or a part, as may be deemed reasonable on enquiry, settled to her separate use.
John Gouldin, of the county of Caroline, died in February 1863. He left a will, which was admitted to probate in the county court of Caroline; and his sons, Thomas W. and James F. Gouldin, qualified as his executors. The provisions of the will are sufficiently set out in the opinion of Anderson, J. After a number of specific devises and bequests to his children, he says: " I desire that all the balance of my estate, not already disposed of, be equally divided into four parts. After the sale of the land, as hereafter directed, one part to go to the heirs of my son Silas B. Gouldin, one part to my daughter Martha J. Broadus, one to Lavinia C. White, and one part to Bettie J. Conway." By a subsequent clause he directs and empowers his executors to sell the estate embraced in this residuary clause of his will, as soon after the payment of his debts as they may think best for the benefit of the legatees interested.
Testator's daughter Lavinia was married to William S. White. He lived in Caroline county until 1863, when he removed with his family to the state of Georgia, where they remained until some time in the year 1871, and then removed to the state of Tennessee, where they still live. The family consists of Mr. and Mrs. White and seven children. He is at present insolvent.
In 1869 William S. White appears to have come to Virginia; and in August 1869 the following submission and award and proceedings thereon were entered and made, viz:
Whereas differences of opinion and opposing claims have arisen between Thomas W. Gouldin and James F. Gouldin in their capacity as executors of the last will and testament of John Gouldin deceased, and as beneficiaries under the same, and as heirs and distributees of said decedent, on the one side, and William S. White and Lavinia C. his wife, Lysander B. Conway and Bettie J. his wife, and certain children of Silas B. Gouldin, viz: John G., Wilton S, and William M. Gouldin, respecting their respective interests as devisees, legatees, heirs and distributees of said John Gouldin deceased; which differences and disputes relate to the proper legal construction of the will of said testator, to the proper rights, interests and claims of all said parties thereunder, and to the actings and doings of the said executors in their administration of the estate of said testator.
Now, for the final ending of all such questions and disputes, and the decision of the same, it is consented, concluded and agreed, by and between all the said parties, that all the said questions and disputes, and all matters of controversy, and of conflicting rights and interests between said parties in the premises shall be, and they are hereby, referred and submitted to the final award and determination of John L. Marye, Jr., of Fredericksburg, and Judge Richard H. Coleman of Fredericksburg arbitrators, indifferently chosen by the said parties, to hear, decide, and finally determine the same; and in case of disagreement arising between said arbitrators, touching any such matter so submitted to them, they shall select and call in a third arbitrator to act as umpire between them, and decide and determine any such matter of disagreement. So that the award, decision and judgment so made by said arbitrators and said umpire (if one be called in), be rendered in writing on or before the 20th day of October 1869, and duly authenticated copies thereof be delivered to each of said parties; and it is hereby mutually agreed by and between the said parties that this submission shall be made a rule of the circuit court of Caroline county. And it is further understood and agreed by, and between said parties, that in making this arbitration the said arbitrators are not to be held rigidly bound by the rules and principles governing courts of law and equity, as settled by the courts of this country, whenever in their judgment the rigid application of such rules would work gross injustice to any of said parties; but shall in such case decide and determine according to their individual views and judgment of the very right and justice of the case.
And in order that the award and decision so made by said arbitrators may be effectual and satisfactory between the said parties, it is hereby agreed by the latter that the said arbitrators shall prescribe, declare and determine in whet mode, and out of what property which came from the estate of said decedent, and now under control of any of said parties, all the rights and claims of all said parties, as ascertained and determined by said award, shall be satisfied.
In witness whereof, the said parties acting for themselves, and binding themselves as to the assent and submission hereunto of their respective wives, who have interest to be affected hereby, have hereunto set their hands and seals this 11th day of August 1869. T. W. GOULDIN,
| [Seal.] |
| J. F. GOULDIN, | [Seal.] |
| WM. S. WHITE, | ) |
| ) | [Seal.] |
| For self and Lavinia C. White. | ) |
| L. B. CONWAY, | ) |
| ) | [Seal.] |
| For self and Bettie J. Conway. | ) |
| WILTON S. GOULDIN, | [Seal.] |
| WILLIAM M. GOULDIN, | [Seal.] |
| JOHN G. GOULDIN, | [Seal.] |
We hereby express our approval of the above award. Witness our hands and seals.
| T. W. GOULDIN, | [Seal.] |
| J. FRANK GOULDIN, | [Seal.] |
| WM. S. WHITE, | [Seal.] |
| L. B. CONWAY, | [Seal.] |
IN CAROLINE CIRCUIT COURT, Sept. 22d, 1869.
Ex parte John Gouldin's heirs, devisees, legatees, distributees and executors.
It appearing to the court that Wm. S. White, and Lavinia C. his wife, Lysander B. Conway and Betty J. his wife, Wilton S. Gouldin, William M. Gouldin and John G. Gouldin, and Thomas W. Gouldin, and J. F. Gouldin, did on the 11th day of August 1869 agree to submit to the arbitration of John L. Marye and Richard H. Coleman all matters of controversy and difference between said parties, which differences and disputes relate to the proper legal construction of the will of John Gouldin deceased, to the proper rights, interest and claim of all said parties thereunder, and to the actings and doings of the said Thomas W. Gouldin and J. F. Gouldin, as executors of John Gouldin deceased, in their administration of his estate; and that said parties did also agree that said arbitrators should prescribe, declare and determine in what mode and out of what property which came from the estate of said decedent, and now under the control of any of said parties, all the rights and claims of all of said parties, as ascertained and determined, shall be satisfied.
It is ordered that a rule be made that the said parties submit to the award which shall be made in pursuance of said agreement.
And an award made under said agreement having been returned by said arbitrators, it is ordered that said award be entered up as a decree of this court, so far as said award relates to said William S. White and Lavinia C. his wife, Lysander B. Conway and Bettie J. his wife, Thomas W. Gouldin, and J. F. Gouldin; the said William S. White and Lavinia C. his wife, Lysander B. Conway and Bettie J. his wife, Thomas W. Gouldin and J. F. Gouldin, having appeared in court through their counsel, and having waived any summons to show cause against said award: and in accordance with the terms and provisions of said award.
The court doth adjudge, order and decree, that Thomas W. Gouldin and James F. Gouldin do pay Lysander B. Conway, in full of all interest, claim and demands of himself and his wife Bettie J. Conway in the estate of John Gouldin deceased, the sum of eight thousand dollars, with six per cent. interest thereon from this date until paid.
Second. That they pay a like sum, with like interest, unto William S. White in full of all the interest, claim and demand of himself and his wife Lavinia C. White in said estate; but that the said William S. White and wife shall allow as a credit to the said Thomas W. and James F. Gouldin, in the payment of the said $8,000, the amount of a certain debt owing by the said Wm. S. White and said John Gouldin, dec'd, jointly unto John Kay.
Third. That the said Thomas W. and James F. Gouldin pay the like sum of eight thousand dollars, and like interest, unto the heirs and distributees of Silas B. Gouldin, dec'd, equally to be apportioned between them, in full of their interest in said estate of John Gouldin, dec'd; subject, however, to a credit to be allowed to said T. W. and J. F. Gouldin, in paying said sum, of the amount of a certain debt due by the estate of said John Gouldin to the estate of Wiley R. Mason, dec'd.
Fourth. That in satisfaction of the sum of twenty-five hundred dollars of the moneys to be paid to Wm. S. White and L. B. Conway, the said Thos. W. and James F. Gouldin, as executors, do transfer unto said White and Conway the twenty-five shares of the capital stock of the Fredericksburg Aqueduct Company belonging to their testator, the said White and Conway, each giving his receipt for twelve hundred and fifty dollars on account thereof to said T. W. and J. F. Gouldin.
Fifth. That the said Wm. S. White, L. B. Conway, and the adult heirs and distributees of Silas B. Gouldin, shall, before they receive any of the moneys awarded them hereby, execute and deliver unto the said T. W. and J. F. Gouldin bonds with security satisfactory to the latter, conditioned as follows, viz.: The said L. B. Conway shall execute a bond conditioned for the payment and satisfaction of one-fifth part of any amount of debt which may hereafter be discovered as due by the estate of said John Gouldin, and which may be enforced against the same, and the existence of which is not now known to said executors, provided that such after discovered indebtedness shall swell the indebtedness of said estate beyond the sum of thirty-three thousand and five hundred dollars when computed as of the present date (this award being based upon the estimate that the entire indebtedness of said estate of J. Gouldin, computed as of this date, amounts to the sum of thirty-three thousand and five hundred dollars), and that the said William S. White shall execute a bond with like security and like conditions, and that the adult heirs and distributees of Silas B. Gouldin shall execute a bond with like security and like conditions.
Sixth. That the said Thomas W. and James F. Gouldin shall execute their joint bonds to the said parties for the money so awarded herein to be paid by them to said parties, which bonds shall stipulate for the payment of said moneys, with interest thereon as aforesaid, in three equal annual instalments, at one, two and three years respectively from this date. But written obligations shall be executed by the said T. W. and J. F. Gouldin, binding them that in case a sale of either of the tracts of land which they derive from the estate of John Gouldin, called " Hays Mount" and " Lynden," shall be made on terms, and at a time, so that the proceeds of such sale shall be realized earlier than the maturity of said three annual instalments stipulated in said bonds, then that two-thirds of such instalments of purchase money realized from such sale of said farms shall be applied to the payment of the instalments called for in said bonds in anticipation of the maturing of said instalments.
Seventh. Proper and sufficient deeds of trust shall be executed by the said Thomas W. Gouldin and James F. Gouldin, and their respective wives, conveying unto Richard H. Coleman and John L. Marye, as trustees, the said real property called " Hays Mount" and " Lynden" (embracing all the area of land as pertaining to each farm as was designated for each in the will of said John Gouldin) in trust, to secure by such provisions in said deeds as said trustees may deem discreet and efficacious and reasonable the payment of said bonds.
Eighth. The said L. B. Conway, William S. White, and the adult heirs and distributees of Silas B. Gouldin, and their wives respectively, shall execute good and sufficient deeds of release, releasing unto the said Thomas W. Gouldin and James F. Gouldin all the interests and claims of said parties respectively, of, in, and to the estate of said John Gouldin, and releasing and discharging the latter as executors of said John Gouldin, from all liability or obligation to them over and beyond the obligation for the payment of moneys as imposed and directed by this award.
And it is ordered that said Wilton S. Gouldin, William M. Gouldin and John G. Gouldin be summoned to the next term of this court to show cause, if any they can, against this award.
In October 1869 and in September 1870 and 1871 certain creditors of William S. White in Virginia, whose debts were contracted prior to the death of John Gouldin, instituted proceedings in the county and circuit courts of Caroline, against said White and the executors of said Gouldin, to have satisfaction of their debts out of the money directed by the award to be paid by the executors to William S. White; and in these proceedings there were orders by the court that the debts should be paid by T. W. and James F. Gouldin, the executors, when the money they owed became due.
In November 1871 Mrs. Lavinia C. White, by her next friend L. B. Conway, filed her bill in the circuit court of Caroline county, setting out the foregoing facts. She says, her husband has little or no means, and it is with great difficulty that he can support her and her children, and that not comfortably. That the said $8,000 and the interest thereon, directed to be paid by Thomas W. and James F. Gouldin to said White, arises from the land of her father, which was directed to be sold by his will, and which is still in the possession of said Thomas W. and James F. Gouldin, his executors; and the fund has not been paid either to William S. White or the creditors who have sought to subject it, naming them; that said White has not reduced the said fund into his possession by unconditional decrees, judgments, assignments, or otherwise; nor has she, the plaintiff, personally united in or been bound by any such proceedings. And making Thomas W. and James F. Gouldin, as executors and in their own right, and the said creditors, naming them, parties defendants, she prays that the said Gouldins may be enjoined from paying any part of said fund to the said creditors; that it may be settled upon her for the support of herself and her children; and for general relief.
The creditors answered, insisting that Mrs. White was bound by the submission and award and the order of the court upon the award; and that the fund had been by these proceedings reduced into possession by the husband.
Several witnesses were examined, who proved the insolvent condition of White, and the number of the children.
The cause was removed to the circuit court of Spotsylvania, and came on to be heard on the 25th of November 1872; when the court held that there had been a reduction into possession by William S. White of the estate sought to be settled on the plaintiff, by the award which was entered as a decree in the case, ex parte Gouldin, in Caroline circuit court on the 23d of September 1869. The injunction was therefore dissolved, and it was decreed, by the consent of William S. White, that after the payment of the debts to the creditors named, and any other debts of William S. White which might be made out of said funds, the balance of the fund should be paid to L. B. Conway, as trustee, for the sole and exclusive use and benefit of the said Lavinia C. White. From this decree Mrs. White, by her next friend, obtained an appeal to this court.
E. C. Moncure and A. B. Chandler, for the appellant.
E. P. Chandler, Braxton and Wallace, for the appellees.
OPINION
ANDERSON, J.
John Gouldin, by his last will, bearing date 1st day of February 1863, and probated March 9th following, after the payment of his debts, desired that all his lands, except the land he bought of the Buckners, called the Summer-house tract, and the land he bought of Catharine Merryman's estate, be divided into three lots, which are described, and gives to his son James F. Gouldin the first choice of the three lots, and to his son Thomas W. Gouldin the second choice.
He bequeaths to his granddaughter Josephine A. Broadus, for life, with remainder to her issue, if any, and in default of issue to his children and their legal representatives, the sum of three thousand dollars in bank stock and two servants.
To his son Thomas W. Gouldin a specific legacy, including a number of servants.
To his son James F. Gouldin a similar specific legacy.
To the estate of his son Silas B. Gouldin, the interest of Silas B. Gouldin, Jr., which he bought of C. C. Jett, trustee.
To his daughters, Martha J. Broadus, Lavinia C. White and Bettie J. Conway, he makes severally specific legacies of slaves.
To his daughter Lavinia C. White he gives the money he lent her husband Wm. S. White, and his watch; to his daughter Bettie Conway one thousand dollars, to be added to what she has already received; and to his daughter Martha J. Broadus he lends the farm on which she resides, for her use and benefit during her life, and at her death to return to his heirs or their legal representatives.
All the balance of his estate, not already disposed of, he directs shall be equally divided into four parts. After the sale of the land, one part to go to the heirs of his son Silas B. Gouldin, one part to his daughter Martha J. Broadus, one to Lavinia C. White, and one part to Bettie J. Conway.
That portion of his estate included in the foregoing residuary clause, allotted to the heirs of his son Silas, he leaves in the hands of his executors, to be sold or not as they may think best for the children, and equally divided among them. And that portion allotted to his daughter Martha J. Broadus, as well as the farm on which she resides, he leaves also in the hands of his executors, in trust, for her use and benefit during her life, and at her death to return to his children, & c. He directs his executors to sell the portion of his estate which is included in the residuary clause, as soon after the payment of his debts as they may think best for the benefit of the legatees interested. And he appoints his sons Thomas W. Gouldin and James F. Gouldin his executors, and requires of them no security.
William S. White removed, with his wife Lavinia and their seven children, to the state of Georgia, in 1863, where they remained until 1871, when they removed to the state of Tennessee, where they now reside. This is a suit by Mrs. Lavinia C. White, by bill in chancery, for a settlement on her and her children of the foregoing legacy. The bill alleges that her husband, William S. White, has little or no means, and can with great difficulty support her and her children, and that not comfortably. The evidence shows very clearly that he is insolvent. The issue is between her and creditors of her husband, who seek to subject her legacy to the payment of his debts. When these debts were contracted the property involved in this controversy was neither hers nor her husband's. It was the property of John Gouldin, who subsequently bequeathed it to his daughter.
The wife had rights in this legacy independently of, and adversely to her husband. The theory of this branch of equity jurisprudence, is very clearly stated by Mr. Story (2 Stor. Eq. § 1405). " By marriage (he says) the husband clearly acquires an absolute property in all the personal estate of his wife capable of immediate and tangible possession. But if it is such as cannot be reduced into possession except by an action at law, or by a suit in equity, he has only a qualified interest therein, such as will enable him to make it an absolute interest by reducing it into possession. If it is a chose in action, properly so-called, that is, a right which may be asserted by an action at law, he will be entitled to it if he has actually reduced it into possession in his lifetime. (Mr. Story says a judgment is not sufficient; upon which we give no opinion.) But if it is a right which must be asserted in a court of equity, as where it is vested in trustees who have the legal property, he has still less interest. He cannot reach it without application to a court of equity, in which he cannot sue without joining her with him; although perhaps a court of law might permit him to do so, or at least to use her name without her consent. If the aid of a court of equity is asked by him in such case it will make him provide for her, unless she consents to give such equitable property to him." Baldwin, J., in Yerby & wife v. Lynch & al. 3 Gratt. 439, 476, said, " It will be found that whenever the husband has not the unlimited disposition by assignment of choses in action of the wife, they are such as are not assignable at common law, as debts due her on bonds or otherwise, money in funds, legacies, trust funds, and other property recoverable by action or suit." The property in this case is a legacy, which is only recoverable by suit in equity; and in a suit for such purpose by the husband he must join the wife as plaintiff. And if the husband had brought suit in this case to procure said legacy, or any portion of his wife's fortune, a settlement would have been decreed to the wife upon her request. In such case it is of no consequence, whether the fortune accrues before or during a marriage, the equity of the wife will attach to it. (Stor. Eq. § 1408.) And the legacy having been made to her during the marriage, and after the debts sought to be enforced against it were contracted, she has a higher equity against the claims of her husband's creditors, because the debts could not have been contracted on the faith of the property now claimed by her. All who claim under the husband must take his interest subject to the same equity.
The wife was then, in this case, invested with a property by the will of her father, of which she could not be divested by her husband or his creditors by any legal proceeding except by suit in equity, to which she was a party. The wife may not only assert her right to a settlement in a suit brought by the husband or his assignee to extinguish her right, by way of defence; but she may bring a separate and independent suit in her own name by her trustee, against the husband and his assignee, to prevent her property being subjected to the marital rights of her husband, and to have it, or a part of it, settled upon her and her children. It was at one time supposed that the wife could only assert her equity in a suit by the husband or his assignee to acquire her property absolutely, only upon the principle that he who asks equity must do equity. But it seems to be settled now, that the wife's equity constitutes a valuable consideration to support a post-nuptial settlement by her husband; and it is now firmly established that she may recover her property in a suit brought by her or her trustee for the purpose of asserting her claim to a settlement, and that a court of equity will decree to her the whole of it if only a reasonable settlement. Poindexter & wife v. Jeffries & als., 15 Gratt. 363; Stor. Eq., § 1377 a; Davis' widow v. Davis' creditors, 25 Gratt. 587.
But it is contended by the appellees, that the right of the husband to the wife's legacy in this case has become absolute, and the wife's equity extinguished by the submission and award of arbitrators, and the entering up said award ex parte as the decree of the court.
It does not appear that the appellant was a party to that submission. The deed of submission is signed and sealed by William S. White, and under his signature is written, " For self and Lavinia C. White." There is nothing to show that her signature is there either by her act or by her authority, or with her assent. Indeed it does not purport to have been signed by her. It only purports to have been signed and sealed by William S. White for himself and Lavinia C. White. She puts in issue the fact of execution by her bill, by the averment that she has not personally united in or been bound by any of those proceedings; and there is nothing in the record to show that she participated in them in any manner. At the time of these proceedings, from their inception to their ending, she was not present, but resided in a distant state, and in all probability had no knowledge of what was going on. Her husband disclaims any authority from her to assent to the submission, or to confirm or sanetion the award, and there is no proof of her knowledge or assent.
Is it competent for the husband, in the absence of his wife, and without her consent or knowledge, to enter into an agreement with the executors of her father and the legatees, to submit to arbitration her legacy, which he could only recover by suit, by suing jointly with her in equity, and in which suit he could not recover without making a settlement on her, and to agree that the award should be made the decree of court under a rule, thereby depriving the wife of her right to a settlement? It would be a fraud upon the rights of the wife. If she were notified of the proceeding, she might invoke the interposition of a court of equity to restrain the arbitrators from proceeding to award the payment of her legacy to her husband, or her husband from receiving it, without making a reasonable settlement on her and her children. It does not appear that she was ever served with notice of the award or of the rule of court. The whole proceeding was ex parte as to her, and should not be allowed to deprive her of her right to a settlement. The award itself is but a chose in action, and doubtless was not intended by the arbitrators to settle and adjust any questions involving the marital rights of the husband or wife; nor was the litigation of any such matters contemplated or designed by the parties in their deed of submission; nor was there in fact any such question canvassed or passed upon by the arbitrators in making up their award. The only purpose was to ascertain the extent of the executors' liabilities, and the amount due to each legatee; and the direction that the executors should pay to William S. White the legacy due to his wife was given evidently without reference to any question as to the right of the wife to a settlement, and without intending to pass upon such right. The award has not been executed; the ex parte decree has not been performed; the subject matter remains in statu quo. What is there to preclude the wife from now filing her bill, and asking that the ex parte decree may be reformed, and that the amount awarded her should not be paid to her husband or his creditors, but that it be settled on her and her children; as she has done in this case?
But does the award and the ex parte decree of the court, if valid, vest the plaintiff's legacy absolutely in her husband, and debar her of her right to proceed in equity for a settlement?
" No act or intention of the husband which stops short of an actual reduction into possession, or of an entire extinguishment of the original right of action in the wife, in some of the modes indicated, can operate so as to destroy her right." Allen, J., in Yerby & wife v. Lynch & al., 3 Gratt. 439, 495. In this case there has been no actual reduction of the wife's legacy by the husband into possession. The residuum consisted of lands, which the executors were required to sell as soon after payment of testator's debts as they may think best for the legatees interested. The bill alleges that said lands are still held by the executors unsold, and the legacies which are to be raised by the sale thereof have not been paid; that the legacy to the plaintiff has not been paid to her husband or to his creditors, and that she is not precluded by reason of said award and ex parte decree, to which she was not a party, from obtaining a decree against the executors in this suit. She is willing to accept the amount in satisfaction of her legacy as ascertained by the said arbitrators; but asks that the same may be settled upon her for the support of herself and children, free from the control or appropriation of her husband, or any of his creditors. Admitting said award and ex parte decree to be binding as between her husband and the other parties to the same, it cannot be binding as between her and any of the parties thereto, she not having been a party to either. And the decree that the executors should execute their bonds to William S. White for the amount of his wife's legacy so ascertained, and execute a deed of trust upon certain lands as security for the same, upon receiving refunding bonds with security satisfactory to them, from the said William S. White, and deeds of release from the said William S. White and Lavinia C., his wife, of all the interests and claims of said parties in and to the estate of John Gouldin, deceased; and moreover, releasing said Thomas W. and James F. Gouldin of all liability and obligation to them, over and beyond their obligation for the payment of moneys, as imposed and directed by said award, having never been performed; and the payment to W. S. White by the executors being conditioned upon the performance of said several acts by the said Wm. S. White, which he has not chosen to perform, and upon the execution of a joint deed of release by the said Wm. S. White and Lavinia C. White, which it was at least optional with her to perform or not, it seems to the court that said conditional award and decree not having been performed by the husband, and not obligatory upon the executors until performed by William S. White and Lavinia C., his wife, and being incapable of a coerced performance by the wife, they cannot be regarded as even constructively a reduction by the husband of the wife's legacy into his possession. Nor can said award and decree, under the circumstances and in connection with the facts, be regarded as a surrender or waiver by the wife, or extinguishment of her equity.
Courts of equity will interpose to secure to the wife her equity to a settlement--first, when the husband seeks aid or relief in a court of equity in regard to her property; secondly, when he makes an assignment of her equitable interest; and, thirdly, where she seeks, as plaintiff, relief in equity against her husband, or his assignees, in regard to her equitable interests. It is true, she may waive a settlement, and agree that the equitable fund shall be wholly and absolutely paid over to her husband. But it must very satisfactorily appear that such was her wish. In a pending proceeding her consent must be given before a settlement under the decree is completed, and her consent must be given in open court or under a commission. Such is the respect which the courts of equity have for the wife's equity. And in some cases a court of equity will not allow the wife to dispense with a settlement out of her property, as where she had been a ward of the court of chancery and married without its authority. 2 Story Eq. §§ 1404 and 1418.
As to the amount which should be settled upon the wife--whether a part or the whole of her legacy, and, if only a part, what proportion--depends upon what would be a reasonable settlement. The court is not prepared to say that the whole of the wife's legacy in this case ought not to be settled on her and her children. If it is not more than would afford them a reasonable support, being property given to her by her father, and upon the faith of which the debts in question could not have been contracted, and evidently not intended to go to her husband, for even the debt due the testator by the husband he gives to her, it would not be an unreasonable settlement. But there ought to be an account, to ascertain what would be a reasonable allowance. The court is therefore of opinion, to reverse the decree with costs, and to remand the cause, to be proceeded with in conformity with the principles herein declared.
DECREE REVERSED.