No. I.

Marriage Articles (1) relative to Freehold Lands, &c. preliminary to a future Settlement to be made after Marriage-the Lady being a Minor (2).

Variations where the Lady is a Ward of Chancery.
Where Part of the Estate is Copyhold.

(1) Agreements made in contemplation of marriage must, in order to be valid, be put into writing and signed by the parties to be charged therewith, or by some person lawfully authorised in that behalf; see 29 Car. 2. c. 3; or must have been so intended to be, and prevented by fraud; in which case they will in equity be equally binding on the fraudulent party; Whitebrook v. Bevis, 2 Brow. Ch. Ca. 565; Maxwell v. Montacute, Prac. Chan. 526; or they must have been partly carried into execution by one of the parties, which renders the non-perform ance by the other party a fraudulent act.

Articles of this kind are entered into previously to the intended marriage, either on account of the impatience of the parties to wait till a formal and legal settlement can be prepared, which, where the estates are such as to require strict and numerous limitations and provisions, may occupy a considerable time, or where one of the parties is under age, and therefore incapable of making an actual conveyance to the trustees; and see the next note.

(2) Marriage articles, i. e. agreements for making a future Power of infants

to settle, &c.

settlement, are necessary only where one of the parties (generally the intended wife) is under age at the time of the marriage, and the property is that of the intended wife and of a real nature; for the personal property or chattel interests of a woman is, for her benefit, allowed to be definitively settled on her marriage, notwithstanding her minority, as it would otherwise immediately become the absolute property of the husband; Harvey v. Ashley, 3 Atk. 613; Chitty v. Chitty, 3 Ves. 545; but as this would not be the case of real property, and as such property requires an actual conveyance to be executed by her in order to its settlement, (which an infant is incapable of doing), Milner v. Harwood, 18 Ves. 259, a settlement of such property cannot be actually made (unless by act of parliament or writ of privy seal, as after-mentioned) until she attain the age of twenty-one years, but if she enter into articles before her marriage, to settle her estates on her coming of age, which, when made by the assent of her friends (and, in some cases, without), see Durnford v. Lane, 1 Brow. Ch. Ca. 105; Chitty v. Chitty, 5 Ves. 545; in consideration of an adequate provision made upon her by her intended husband, these are holden to be binding upon her and her heirs; see Uvedale v. Halfpenny, 2 P. Wms. 154; Cannel v. Buckel, ib. 243; Williams v. Williams, 1 Brow. Ch. Ca. 152; Caruthers v. Caruthers, 4 ib. 502; Ainslie v. Medlycott, 9 Ves. jun. 19; and more especially if she leave issue of the marriage entitled to a benefit under the settlement; Blois v. Hereford, 2 Vern. 501; Harvey v. Ashley, 3 Atk. 613; Seamer v. Bingham, 3 Atk. 56; Lucy v. Moor, 4 Brow. P. C. 343; Randall v. Willis, 5 Ves. jun. 262; for persons claiming under such articles are considered as purchasers for a valuable consideration. And when an estate has been thus specifically agreed to be settled, it becomes a trust, which passes with the lands into whose hands soever they come, and cannot be defeated by any act of the father or trustees; Stratford v. Powell, 1 Ball and Beat. 25; Neale v. Cust, Dick. 513; and even the elopement or adultery of the wife will not defeat her of a jointure provided for her under such articles; for although adultery is made a forfeiture

(the intended wife) of, &c.

an infant under of 21 years, that is to say, being of the age

SETTLE

MENTS.

Marriage
Articles.

of her dower by the statute, Westm. 2, yet that act does not extend to jointures; Buchanan v. Buchanan, 1 Ball and Beat. 204; Seagrave v. Seagrave, 13 Ves. 443; nor will such misconduct on the part of the wife preclude her from calling for a specific performance of marriage articles entered into in her favour; Buchanan v. Buchanan, 1 Ball and Beat. 203.

tail.

And an infant feme, being tenant in tail, may, by writ of privy Infant tenant in seal, levy a fine, or suffer a recovery, to enable her to bar the entail, for advancing herself on marriage; but as it is in the discretion of the court to permit it, or not, as they shall judge fit, under the circumstances of the case, see Doe v. Rawling, 2 Barn. and Ald. 450, an act of parliament is now usually had recourse to for this purpose.

But although an infant feme may bar herself, by agreement before marriage, of her dower, E. Buckingham v. Drury, 3 Bro. P. C. 492; Chitty v. Chitty, 3 Ves. 547, or freebench, Walker v. Walker, 1 Ves. 54, and thirds, Caruthers v. Caruthers, 4 Br. C. C. 500; Smith v. Smith, 4 Ves. 189; yet this is only where some provision is made for her by the husband in lieu of that which the law would otherwise have given her; and such provision must be certain and not contingent or precarious; Caruthers v. Caruthers, 4 Bro. Ch. Ca. 499; she may else, on surviving her husband, make her election to take whichever she pleases; see Smith v. Smith, 5 Ves. 189; Glover v. Bates, 1 Atk. 439; unless after his death she conclude herself by doing some act in confirmation of the settlement, which will be construed to amount to an election, Archer v. Pope, 2 Ves. 525; Harvey v. Ashley, 3 Atk. 616, unless it be done unadvisedly and in ignorance of her right to avoid it; Broderick v. Broderick, 1 P. Wms. 239; Pusey v. Deshourie, 3 ib. 320; Soden v. Soden, cited 13 Ves. 119. This provision need not, however, it should seem, be wholly (if at all) out of land; see E. Buckinghamshire v. Drury, 5 Brow. P. C. 570, 4 Brow. Ch. Ca. 505; Chitty v. Chitty, 3 Ves. 545; nor is it necessary that it should be of equal amount

SETTLE

MENTS.

Marriage
Articles.

of
lady's father, or guardian) of, &c.

, or thereabouts, of the second part, (the

Recital of lady's of, &c.

property.

father

or guardian, (1) (as the case may be) of the said (intended wife) of the third part, and (trustees) of the fourth part. WHEREAS the said (intended wife) is seised of, or otherwise entitled to her and her heirs, under or by virtue of the last will and testament of

late of

Lady, a ward of chancery.

with the law's provision, Chitty v. Chitty, ubi sup. and Harvey
v. Ashley, 3 Atk. 55. And an infant male may, it should seem,
by articles previous to his marriage, equally bar himself of his
curtesy out of his wife's lands, and of his right to her personalty;
and see Slocome v. Glubb, 2 Brow. Ch. Ca. 545; and so also may
a male infant make a settlement of his chattel and personal in-
terests; Durnford v. Lane, 1 Brow. Ch. Ca. 105; Caruthers v.
Caruthers, 4 ibid. 499; but he cannot, it is held, settle his own
real estate (except it be of gavelkind tenure, at the age of 15)
under any circumstances, except in exercise of a power; see
Hollingshead v. Hollingshead, Gilb. Eq. Rep. cited 2 P. Wis.
229; yet it seems strange that an infant male (at the present
day) should not have the same power as a female infant has to
settle his real as well as his personal estates as a provision for
his wife and children, on his marriage; and see 16 Vin. Ab.
486; Strickland v. Croker, 2 Ch. Ca. 211; Hearle v. Green-
bank, 3 Atk. 695, 1 Ves. 298; Warburton v. Litton, cited
4 Brow. Ch. Ca.; also Co. Lit. 246, a. n. (1).
(1) If the lady be a ward of chancery, say,

"A guardian duly appointed by the high court of Chancery, in pursuance of an order of the said court hereinafter recited."

If the marriage cannot be had without the consent of trustees, which restriction is good; Lloyd v. Brunt, 3 Mer. 116; Malcolm v. Callagan, 2 Mad. 349; the court will, if they refuse, refer it to the master to inquire as to the propriety of the marriage; Geldsmid v. Geldsmid, Cooper, 225.

deceased, (or as the case may be) to certain lands SETTLEand hereditaments situated at

in the county

of
and hereinafter more particularly de-
scribed, as for an estate in fee-simple in possession,
[and is also possessed of or entitled to certain lease-
hold premises, situated at
and likewise to

three per cent consolidated

MENTS.

Marriage
Articles.

marriage.

bank annuities.] AND WHEREAS a marriage hath Contract of been agreed upon (1) and is intended to be shortly

(1) If the lady be a ward of the court of chancery, recite the Lady, a ward of chancery. proceedings in the court preparatory to the intended marriage,

as,

"AND WHEREAS by a decree or decretal order of the Recital of prosaid court, made on the day of in a cause chancery.

then and now there depending, entitled

day of

against

ceedings in

; It was amongst other things ordered, that the said (intended husband) should be at liberty to lay proposals before Mr. the master to whom the said cause was referred for a settlement upon the said (intended wife) and the issue of the said marriage. AND WHEREAS the said (intended husband) in obedience to the said decree or decretal order, on or about the laid before the said master proposals for the said settlement, which proposals were approved of by the said master, as appears by a separate report made in the said cause, bearing date on or about the day of WHEREAS the said (one of the trustees) hath been named by the said (intended husband) and the said (other trustee) by the said (father or guardian) on the behalf of the said (intended wife) and approved of by the said master, as trustees for carrying the said settlement into execution. AND the said master hath also approved of these presents, as proper articles of agreement for a settlement of the lands and hereditaments of the said (intended wife), to be made on her attaining the age of twenty-one years, as appears by

AND