WIFE'S EQUITY. 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 with out the aid of a court of equity. Shelford, Marr. & D. 605.
2. By the marriage the husband acquires an interest in the property of his wife, in consideration of the obligation which he con tracts by the marriage of maintaining her and their children. The common law enforces this duty thus voluntarily assumed by him, by an action, and, therefore, allows him to alien the property to which he is thus entitled jure mariti, or in case of his bankruptcy or insol vency 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.
The principle upon which courts of equity act is, that hewho seeks the aid of equitymust do equity ; and that will be withheld until an adequate settlement has been made. 1 P. Will. Ch. 459, 460. See 5 Mylne & C. 105 ; 11 Sim. Ch. 569 ; 4 Hare, Ch. 6.
3. Where the property is equitable and not recoverable at law, it cannot he obtained without making a, settlement upon a wife and children, if one be required by her, 2 P. Will. Ch. 639 ; and where, though the pro perty 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 Mylne & C. 97. See 2 Ves. Ch. 607, 680 ; 3 id. 166, 421 ; 9 id. 87 ; 4 Brown, Ch. 338 ; 5 Madd. Ch. 149 ; 13 Me. 124 ; 10 Ala. N. s. 401 ; 9 Watts, Penn. 90; 5 Johns. Ch. N. Y. 464 ; 3 Cow. N. Y. 591 ; 2 Paige, Ch. N. Y.
303; 6 id. 366 ; 2 Bland, Ch. Md. 545.
The wife's equity to a settlement is bind ing. not only upon the husband, but upon his assignee, under the bankrupt or insolvent laws. 2 Atk. Ch. 420 ; 3 Ves. Ch. 607 ; 4 Brown, Ch. 138 ; 6 Johns. Ch. N. Y. 25 ; 1 Paige, Ch. N. Y. 620 ; 4 Mete. Mass. 486 ; 4 Gill & J. Md. 283 ; 5 T. B. Monr. Ky. 338; 10 Ala. N. s. 401 ; 1 Ga. 637. And even where the husband assigned the wife's equi table right for a valuable consideration, the assignee was considered liable. 4 Ves. Ch. 19.
4. 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. Ch. 423 ; 3 Ves. Ch. 166. But it is in the discretion of the court to give her an adequate settlement for herself and children. 5 Johns. Ch. N. Y. 464 ; 6 id, 25 ; 3 Cow. N. Y.591 ; 1 Des. Eq. So. C. 263 ; 2 Bland, Ch. Md. 545 ; 1 Cox, N. J. 153 ; 5 B. Monr. Ky. 31 ; 3 Ga. 193 ; 9 Sim. & S. Ch. 597 ; 1 Sim. & S. Ch. 250.
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 Ed. Ch. 337; 1 Jac. & W. Ch. Ir. 472 ; 1 Madd. Ch. 467 ; 11 Bligh, N. s. 104 ; 2 Johns. Ch. N. Y. 206 ; 3 Cow. N. Y. 591 ; 1 Sandf. N. Y. 129 ; 10 Ala. N. s. 401. The wife'a equity will be barred by au ade quate aettleinent having been made upon her, 2 Ves. Ch. 675 ; by living in adultery apart from her husband, 4 Ves. Ch. 146 ; but a fe male ward of court, married without ita con sent, will not be barred although she should be living in adultery. 1 Yea. & B. Ch. Ir. 302.