Howard v. Moffatt

The Chancellor. [ * 208 ] The general rule is, that where the aid of the Court is requisite to enable the husband to take possession of the wife’s property, he must do what is equitable, by making a reasonable provision out of it for *her maintenance and that of her children, and without that, [208] the aid of the Court will not be afforded him. The practice is, for the husband, on a reference, to make proposals of a settlement before a master, and, on the coming in of his report, the Court judges of its sufficiency. Whether the husband applies by himself, or a suit for the wife’s debt, legacy, portion, &c., be brought by the legal representatives of the husband, as his executors, or assignees, the result is the same, and the aid of the Court will not be afforded without a suitable settlement, unless, perhaps, the wife comes into Court, and on examination voluntarily waives any provision. It seems now to be understood, (Sir Wm. Grant, in Murray v. Elibank, 13 Vesey,1.) that the wife may, at her option, waive any settlement, though in one case, Lord Hardwicke still sternly insisted on a provision for her, (ex parte Highham, 2 Ves. 579.) if indeed we may rely on a loose authority, and which was directly contrary to a prior and strong case in his time on that point. ( Willats v. Cay, 2 Atk. 67.) The extent of the provision will depend upon the circumstances of each case. If the husband can lay hold of the property without the aid of a Court of equity, it is understood that he may do it; the Court has not the means of enforcing a settlement by interfering with his remedies at law. These are the general rules which have been established by a course of practice under this peculiar doctrine of the Court, and which has been steadily and uniformly observed, for above a century past. Lord keeper Wright, in Oxenden v. Oxenden, 2 Vern. 494. Bosvil v. Brander, 1 P. Wms. 459. Jacobson v. Williams, 2 P. Wms. 382. Brown v. Elton, 3 P. Wms. 202. Jewson v. Moulson, 2 Atk. 417. Grey v. Kentish, 1 Atk. 280. Burdon v. Dean, and Oswell v. Robert, 2 Ves. jun. 607. 680. Brown v. Clarke, 3 Vesey, 166. Lump v. Milnes, 5 Vesey, 517. Vide also 1 Vesey, 539. 1 Ves. & Beame, 300. and Murray v. Elibank, 13 Ves. 1.) * 209 ] *In the case before me, there are sufficient reasons for requiring some provision for the wife out of the fund in question. Though there be real property of the wife still undisposed of, yet the husband has a life estate in it, and her residuary interest would not be very productive. The fact has also occurred, that she has been left for years unsupported by her husband, in consequence of his unavoidable absence; and it appears from the master’s report, that his means of living are small, and the exercise of his maritime profession unusually hazardous. Under these circumstances, provision ought to be made for the wife out of the moneys now due to her from her father’s estate, before the husband can receive the aid of the Court. I shall, therefore, suspend the decree, and recommend, in [209] the mean time, that the amount of 1,000 dollars be secured for the wife and child, by an amicable arrangement between the parties, and that the residue be paid over to the husband. If this recommendation be not effective, I will then make some direction in the case. N. B. The arrangement recommended took place, and the cause was not brought again before the Court.