It has sometimes been thought that the consent of parents or guardians, and the sanction of the Court of Chancery, might give effect to settlements of their property by infants, which would not have been otherwise binding; hut it may now be considered as settled that there is no foundation for such a doctrine.
Marriage is regarded by the law as a valuable consideration, and will support a covenant entered into by a third party to settle property upon the husband and wife and their issue, whether the settler be one under a natural obligation to make a provision, as in the ease of a parent, or merely a stranger ; and such a covenant will be enforced not only against the settler himself, but against his heir, devisee, or personal representative.
Settlements made after marriage, when no valuable consideration (that is to say, no consideration in money or property) is given for them, are generally called, in contradistinction to those made upon marriage, voluntary settlements, and the persons who take under them are called volunteers; though, as such settlements may have good con siderations to support them, the application of the term is not always strictly accurate. By a good consideration, as distinguished from a valuable one, is here meant that love and affection which is naturally supposed to subsist between near relations, such as parents and children, brothers and sisters, uncles and nephews or nieces.
Specific performance of voluntary covenants to settle property will be enforced in Equity only in favour of those persons for whom the covenantor is under a natural and moral obligation to provide; that is to say, in favour of his wife or children, but not in favour of any other class of volunteers. If, however, any valuable consideration has really been given, either by the person who, by himself or his representative, claims execution of the articles, or by a third person, in favour of the object of the limitation, specific performance will be decreed, and no objection can be made on account of want of relationship between the parties; and, for dila purpose, it is sufficient if the fact of a consideration being given can be inferred from the circumstances. Though a person whose claim is not supported by a good or valuable consideration cannot him self compel the execution of articles in his favour, he may yet have the benefit of a suit instituted by another ; for in decreeing specific per formance, the court executes the entire articles, though they may embrace limitations to persons in whose favour it would not have originally interfered.
2. Next, m to the validity of marriage settlements against creditors and purchasers.
Marriage being a valuable consideration, the circumstance of the settler being indebted, or even insolvent, at the time of the execution of the settlement, can have no effect on its validity, even though the persons who have the benefit of the settlement should have full notice of such insolvency. A conveyance or assignment of property in con sideration of marriage stands on the same ground with a sale for money, which is not affected by the insolvency of the vendor. If, however, the settler be a trader, and a fiat in bankruptcy be issued against him prior to the execution of the settlement upon which he is afterwards duly found a bankrupt, such settlement, like all other conveyances of the bankrupt under the same circumstances, will be void ; and it would seem that a settlement must in all cases be void as respects the wife, if she had notice of a prior act of bankruptcy, and a petition be filed within twelve calendar months after such act of bankruptcy. (2 & 3 Viet. c. 11, a. 13.) The marriage consideration does not extend or give the character of purchasers to all persons in whose favour limitations may have been iutroduced into the settlement. In relation to any other persons than the husband and wife and the issue, the settlement is, it seems, to be considered as voluntary, and subject therefore to the rules applicable to voluntary gifts and covenants.
Settlements made after marriage, it is obvious, can derive no support from the consideration of marriage, and their validity or invalidity must therefore depend upon other circumstances.
A postnuptial settlement by the husband, of any species of property made in consequence of a valuable consideration moving either from the wife herself, who gives up an interest that she possesses in property over which she has a disposing power, or from her relations or friends, is good against all persons whatsoever, if the consideration be not so inadequate as to raise the presumption of fraud. And even in case of inadequate consideration, the settlement, it seems, will be good to the amount of the consideration. It is sufficient if the consideration, though not paid, is properly secured. Contemporaneous settlements will in general be presumed to have been made in consideration of each other ; and it seems that parole evidence of consideration is admissible, though none appear upon the instrument itself.