Hutton v. Hutton's Administrator

Rogers, J. This case is free from difficulty. Deeds for the separation of husband and wife are valid and effectual, both at law and in equity, provided their object be actual and immediate, and not a contingent or future separation. This distinction runs through all the cases, and, although the wisest judges have frequently asserted that deeds of separation are at variance with the policy of the law, it is now too firmly settled to be shaken. The argument here contemplates an immediate separation; it -was carried into effect in good faith by the husband, has nothing unreasonable in it, and consequently, the wife, after the death of the husband is [105] not entitled to the aid of the court, in any attempt to violate it. That a wife can acquire a separate property, which a court of equity will protect, is ruled in many cases, and is-recognised in McKennan v. Phillips, 6 Whart. 576. At law, no contract can be made between husband and wife without the intervention of trustees; foe she is considered as being sub potestate viri, and incapable of contracting with him. But in equity, when the contract is reasonable, and where it has been consummated, it will be upheld. Judgment affirmed.