Where the property is equitable and not recoverable at law, it cannot be obtained without making a settlement upon a wife and children, if one be required by her; 2 P. Wms. 639; and where, though the prop erty be legal in its nature, it becomes from collateral circumstances the subject of a suit in equity, the wife's right to a settle. went will attach; 5 My. & C. 97. See Tuck er v. Andrews, 13 Me. 124; Rees v. Waters, 9 Watts (Pa.) 90; Kenny v. Udall, 5 Johns. Ch. (N. Y.) 464; Helms v. Franciscus, 2 Bland, Ch. (Md.) 545, 20 Am. Dec. 402.
The wife's equity to a settlement is bind ing not only upon the husband, but upon his assignee, under the bankrupt or insol vent laws ; 3 Ves. 607 ; Haviland v. Myers, 6 Johns. Ch. (N. Y.) 25 ; Gassett v. Grout, 4 Mete. (Mass.) 486; Duvall v. Bank, 4 Gill & J. (Md.) 283, 23 Am. Dec. 558; Elliott v. Waring, 5 T. B. Monr. (Ky.) 338, 17 Am. Dec. 69; Andrews v. Jones, 10 Ala. 401; Bell v. Bell, 1 Ga. 637. And even where the husband assigned the wife's equitable right for a valuable consideration, the assignee was considered liable; 4 Ves. 19. When the property of the husband is settled upon his wife and children, the settlement will be valid against subsequent creditors if at the time of the' settlement being made he was not indebted; Sexton v. Wheaton, 8 Wheat. (U. S.) 229, 5 L. Ed. 603; Picquet v. Swan, 4 Mas. 443, Fed. Cas: No. 11,133 ; Wells v. Treadwell, 28 Miss. 717 ; Riley v. Riley, 25 Conn. 154; but if he was then indebted it will be void as to the creditors existing at the time of the settlement; Reade v. Living ston, 3 Johns. Ch. (N. Y.) 481, 8 Am. Dec. 520; Albert v. Winn, 5 Md. 68 ; Kinnard v. Daniel, 13 B. Monr. (Ky.) 496 ; Sexton v. Wheaton, 8 Wheat. (U. S.) 229, 5 L. Ed. 603; unless in cases where the husband received a fair consideration in value for the thing settled, so as to repel the presumption of fraud; 10 Ves. 139; Hale v. Plummer, 6 Ind. 121; Andrews v. Andrews, 28 Ala. 432 ; Bul lard v. Briggs, 7 Pick. (Mass.) 533, 19 Am. Dec. 292.
The general rule is that one-half of the wife's property shall be settled upon her; 2 Atk. 423. But it is in the discretion of the court to give her an adequate Settlement for herself and children ; Kenny v. Udall, 5 Johns. Ch. (N. Y.) 464; Ex parte Beresford, 1 Des. (S. C.) 263 ; Helms v. Franciscus, 2 Bland, Ch. (Md.) 546, 20 Am. Dec. 402; Bowling v. Winslow's Adm'r, 5 B. Monr. (Ky.) 31; Howard v. Napier, 3 Ga. 193 ; 9
S. & S. 597.
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 ; 1 J. & W. 472; Howard v. Mof fatt, 2 Johns. Ch. (N. Y.) 206; Andrews v. Jones, 10 Ala. 401.
The wife's equity will be barred by an adequate settlement having been made upon her ; 2 Yes. Ch. 675; by living in adultery apart from her husband; 4 Ves. Ch. 146 ; but a female ward of court, married without its consent, will not be barred although she should be living in adultery ; 1 Ves. & B. Ch.. 302.
In Lady Elibank v. Montolieu, 1 Wh. & Tud. L. Cas. 486, on a bill of a married wo man for a distributive share as next of kin, a decree was made for a settlement on her and her children; and Lord Loughborough treated it as a case of equity to a settlement.
Her Separate Estate. In England a mar ried woman's capacity to dispose of property of whatever kind settled to her separate use, by deed or will, is absolute, unless she be ex pressly restrained by the settlement ; and, generally speaking, it is bound by her con tracts, written or verbal ; 3 Bro. C. C. 347. But it was contended by Chancellor Kent that this was not always so held, and that I the English cases were too contradictory to afford a safe guide, and he held (practically the converse of the English rule) that she could exercise only such power, to be exer cised in such manner as was prescribed by the instrument creating the estate; Trus tees of Methodist Episcopal Church v. Jaques, 3 Johns. Ch. (N. Y.) 77. But this decision was reversed; Jaques v. Trustees, 17 Johns. (N. Y.) 548, 8 Am. Dec. 447, in, which the English doctrine substantially was adopted.
The course of subsequent New York deci sions is neither clear nor consistent, but may, probably, on the whole, be considered as following the last cited case with a quali fication that the married woman is not to be charged unless her intention to charge her separate estate is sufficiently indicated in the contract or implied from some benefit to be derived by her separate estate from the con sideration. See Yale v. Dederer, 18 N. Y. 265, 72 Am. Dec. 503; id., 22 N. Y. 451, 78 Am. Dec. 216; Manhattan Brass & Mfg. Co. v. Thompson, 58 N. Y. 80 ; Second Nat. Bank v. Miller, 63 N. Y. 639 ; Conlin v. Cantrell, 64 N. Y. 217; Yale v. Dederer, 68 N. Y. 329.